Skip to main content

Full text of "The national Bankruptcy act of 1898 : with notes, procedure and forms"

See other formats


v^ 


c./ 


QJornpll  Cam  i>rl|0nl  Bjibrary 


Cornell  University  Library 
KF  1524.B97 


The  national  Bankruptcy  act  of  1898  :wit 


3  1924  019  326  432 


Cornell  University 
Library 


The  original  of  tiiis  book  is  in 
tine  Cornell  University  Library. 

There  are  no  known  copyright  restrictions  in 
the  United  States  on  the  use  of  the  text. 


http://www.archive.org/details/cu31924019326432 


THE 


NATIONAL  BANKRUPTCY  ACT 


OP 


18  9  8 


Notes,  Procedure  and  Forms 


By   J.  ADRIANCE    BUSH 

OF  THE  NEW  YORK  BAR 


NEW  YOEK 

THE  BANKS  LAW  PUBLISHING  CO. 

20  MuBKAY  Street 
1899 


Copyrip:ht,  1899, 

BY 

THE  BANKS  LAW  PUBLISHING  CO. 


JAMHS    E.   LYON. 

PRINTER,   ELECTROTYrER  AND  BINDER. 

LYON  BLOCK,  ALBANY,  N.  Y. 


TABLE  OF   CONTENTS. 


INTRODUCTORY. 

CHAPTER  I. 

Definitions. 
Section  1.  Meaning  of  words  and  phrases. 

CHAPTER  II. 

Cheation  of  CouEts  OF  Bankruptcy  and  Their  Jurisdiction. 
Section  2.  Same. 

CHAPTER  III. 

Bankrupts. 

Section   3.  Acts  of  bankruptcy. 

4.  Wlio  may  become  bankrupts. 

5.  Partners. 

6.  Exemptions  of  bankrupts. 

7.  Duties  of  bankrupts. 

S.  Death  or  Insanity  of  bankrupts. 

9.  Protection  and  detention  of  bankrupts. 

10.  Extradition  of  bankrupts. 

11.  Suits  by  and  against  bankrupts. 

12.  Compositions,  when  confirmed. 

13.  Compositions,  when  set  aside. 

14.  Discharges,  when  granted. 

15.  Discharges,  when  revoked. 

16.  Codebtors  of  bankrupts. 

17.  Debts  not  affected  by  a  discharge. 

CHAPTER  IV. 
Courts  and  Procedure  Therein. 
Section  18.  Process,  pleadings,  and  adjudications. 

19.  Jury  trials. 

20.  Oaths,  affirmations. 


iv  Table  of  Contents. 

Section  21,  Evidence. 

22.  Beferences  of  cases  after  adjudication. 

23.  Jurisdiction  of  United  States  and  State  courts. 

24.  Jurisdiction  of  appeilate  courts. 

25.  Appeals  and  writs  of  error. 

26.  Arbitration  of  controversies. 

27.  Oompromlses. 

28.  Designation  of.  newspapers. 

29.  Offenses. 

30.  Rules,  forms,  and  orders. 

31.  Computation  of  time. 

32.  Transfer  of  cases. 

CHAPTER  V. 

Officebs,  Theik  Duties  and  Compensation. 
Section  33.  Creation  of  two  offices. 

34.  Appointment,  removal,  and  districts  of  referees. 

35.  Qualifications  of  referees. 

36.  Oaths  of  office  of  referees. 

37.  Number  of  referees. 

38.  Jurisdiction  of  referees. 

39.  Duties  of  referees. 

40.  Compensation  of  referees. 

41.  Contempts  before  referees. 

42.  Records  of  referees. 

43.  Referee's  absence  or  disability. 

44.  Appointment  of  trustees. 

45.  Qualifications  of  trustees. 

46.  Death  or  removal  of  trustees. 

47.  Duties  of  trustees. 

48.  Compensation  of  trustees. 

49.  Accounts  and  papers  of  trustees. 

50.  Bonds  of  referees  and  trustees. 

51.  Duties  of  clerks. 

52.  Compensation  of  clerks  and  marshals. 

53.  Duties  of  attorney-general. 

54.  Statistics  of  bankruptcy  proceedings. 


Table  of  Contbnts. 

chapter  vi. 

Ckeditobs. 
Section  55.  Meetings  of  creditors. 

56.  Voters  at  meetings  of  creditors. 

57.  Proof  and  allowance  of  claims. 

58.  Notices  to  creditors. 

50.  Who  may  file  and  dismiss  petitions. 
60.  Pi-eferred  creditors. 

CHAPTEK  VII. 

Estates. 
Section  61.  Depositories  for  monej'. 

62.  Expenses  of  administering  estates. 

63.  Debts  which  may  hs  proved. 

64.  Debts  which  have  priority. 

65.  Declaration  and  payment  of  dividends. 

66.  Unclaimed  dividends. 

67.  Liens. 

68.  Set-offs  and  counterclaims. 

69.  Possession  of  property. 

70.  Title  to  property. 

(71).  The  time  when  this  act  shall  go  into  effect. 

GENERAL,  ORDERS  OF  THE  SUPREME  COURT. 

FORMS. 

BANKRUPTCY  ACT  OF  1800. 

BANKRUPTCY  ACT  OF  1841. 

BANKRUPTCY  ACT  OF  1837  AND  AMENDMENTS. 

BANKRUPTCY  ACT  OF  1898. 

TABLE  OF  CASES. 

INDEX. 


TABLE  OF  CASES  CITED. 


A. 

Abendroth    v.    Durant    (1    Fed.    Rep. 

849),  218. 
Abendroth  v.  Van  Dolsen  (131  V.  S. 

66),  81,  104,  155. 
Adams  v.  Boston,  H.  &  B.  R.  R.  Co. 

(Holmes,  30;  1  Fed.  Cas.  90),  64. 
Adams  v.  Collier  (122  U.  S.  82),  34,  49, 

109,  110,  279. 
Adams  v.  Crittenden  (17  Fed.  Rep.  42), 

32. 
Adams  t.  Crittenden  (133  U.  S.  296), 

37. 
Adams  y.   Merchants'   Nat.   Bank   (2 

Fed.  Rep.  174),  266,  347,  369. 
Adams  v.  Meyers  (1  Saw.  396;  1  Fed. 

Cas.  137),  287. 
Adams  v.   Story   (1   Fed.    Cas.   141), 

408. 
Adams  v.  Tarrell  (4  Fed.  Rep.  7y6), 

51,  68. 
Ahl  v.  Thorner  (2  Bond,  287;  1  Fed. 

Cas.  220),  262. 
Aiken  v.  Edrington  (15  B.  R.  271;  1 

Fed.  Cas.  238),  216,  389. 
Aimes  v.  Moir  (138  U.  S.  306),  302. 
Ala.  &  C.  R.  R.  Co.  v.  Jones  (5  N.  B. 

R.  97;  1  Fed.   Cas.  275),  64,  65, 

16G. 
Ala.  &c.  R.  R.  Co.  v.  Jones  (7  N.  B.  E. 

145;  1  Fed.  Cas.  281),  164,  189. 
Alden  v.  H.  &  E.  R.  Co.  (5  N.  B.  R. 

230;  1  Fed.  Cas.  328),  31. 
AUeman  v.  Kneedler  (2  Fed.  Rep.  671), 

280. 
Allen  V.  Ferguson  (18  Wall.  1),  107. 
Allen  V.  Massey   (1   Dill.  40;  1  Fed. 

Cas.  504;  affd.,  17  Wall.  351),  372, 

373,  385. 
Allen  V.  Thompson  (10  Fed.  Rep.  116), 
.      134,  149. 
Allen  V.   Whittemore   (8  Ben.  485;  1 

Fed.  Cas.  521),  351. 
American  File  Co.  v.  Barritt  (110  IF. 

S.  288),  216. 
Amsinck  v.  Bean  (22  Wall.  395),  278. 
Andrews  v.  Dole  (1  Dill.  108;  1  Fed. 

Cas.  878),  109.    '         ' 


Andrews   T.    Graves    (1   Dill.    108;    1 

Fed.  Cas.  878),  268. 
Anibal  v.  Heacock  (2  Fed.  Rep.  169), 

112,  372. 
Anon.  (11  Chi.  Leg.  News,  190;  1  Fed. 

Oas.  995), 
Anon.  (29  Leg.  Int.  20;  1  Fed.  Cas. 

1011),  403. 
Anon.   (1  N.  B.  R.  122;  1  Fed.  Cas. 

1012),  209,  244,  245. 
Anon.  (1  N.  B.  B.  216;  1  Fed.  Cas. 

1013),  206. 
Anon.  (1  N.  Y.  Leg.  Obs.  349;  1  Fed. 

Cas.  1015  [1843]),  140,  147. 
Anon.  (2  N.  B.  R.  141;  1  Fed.  Oas. 

1015),  97. 
Anon.  (3  N.  Y.  Leg.  Obs.  155;  1  Fed. 

Cas.  1016  [1845]),  132. 
Anon.  (1  Fed.  Cas.  1017),  390. 
Anon.   (1  Wall.  Jr.  127;  1  Fed.  Cas. 

1027  [1843]),  351. 
Anshutz  V.  Hoerr  (1  Fed.  Rep.  592), 

360. 
Antrim  v.  Kelly  (4  N.  B.   R.  587;  1 

Fed.  Cas.  1062),  268. 
Armstrong  v.  Rickey  (2  N.  B.  R.  473; 

1  Fed.  Cas.  1144),  334. 

Arnold  v.   Maynard  (2  Story,  341;  1 

Fed.  Cas.  1181  [1842]),  354. 
Ashby  V.  Steere  (2  Woodb.  &  M.  342; 

2  Fed.  Cas.  15  [1846]),  270,  274, 
354. 

Ashuelot  Savings  Bank  v.  Frost   (19 

Fed.  Rep.  237),  337. 
Aspinwall's    Case    (2    Fed.    Cas.    65 

[1843]),  262. 
Atkinson  v.  Farmers'  Bank  (Crabbe, 

529;  2  Fed.  Cas.  100  [1844]),  262, 

354,  406. 
A-tkinson  v.  Kellogg  (10  N.  B.  R.  535; 

2  Fed.  Cas.  104),  318. 
Atkinson   v.    Fnrdy    (Crabbe,    551;    2 

Fed.  Cas.  112  [1844]),  26,  45,  339. 
Atwood  V.  Kittell  (9  Ben.  473;  2  Fed. 

Cas.  199),  390. 
Augustine  v.  McFarland  (13  N.  B.  R. 

7;  2  Fed.  Cas.  212),  41. 
Austin  V.  O'Reilly  (2  Woods,  270;  2 

Fed.  Cas.  234),  344. 


VIU 


Table  of  Cases  Cited. 


Averett  v.  Stone  (3  Story,  44'5;  8  Fed. 

Gas.  898  [1844]),  353. 
Avery  v.  Cleery  (132  V.  8.  604),  110, 

114. 
Avery  v.  Hackley  (20  Wall.  407),  349. 
Avery  v.  Johann  (3  N.  is.  R.  144;  2 

Fed.  Oas.  251),  59. 


Babbitt  v.  Burgess  (2  Dill.  169;  2  Fed. 

Oas.  280),  190,  406. 
Babbitt  v.   Walbrun   (1   Dill.   191;   2 

Fed.  Oas.  (283,  285;  afCd.,  16  Wall. 

577),  182,  359. 
Bacon  v.  International  Bank,  (131  U. 

S.),  349. 
Bailey  v.  Comings  (16  N.'  B.  R.  382;  2 

Fed.  Oas.  367),  86. 
Bailey  v.   Henderson   (9  Ben.  534;  2 

Fed.  Oas.  373),  262. 
Bailey  v.  Loeb  (2  Woods,  578;  2  Fed. 

Gas.  376),  294,  343. 
Bailey  v.  Nichols  (2  N.  B.  R.  478;  i. 

Fed.  Gas.  381),  289. 
Baily  v.  Glover  (21  Wall.  342),  110, 

111. 
Baker  v.  Vasse  (1  Craneh  0.  O.  194; 

2  Fed.  Oas.  480),  289. 
Baldwin  v.  Raplee  (5  N.  B.  R.  19;  2 

Fed.  Oas.  526),  188. 
Balfour  v.  Wheeler  (15  Fed.  Rep.  229), 

257    337, 
Balfour  v.  Wheeler  (18  Fed.  Rep.  898), 

61,  258. 
Balliet  v.  Seeley  (34  Fed.  Rep.  300), 

152. 
Bank  v.   Oampbell   (14  Wall.   87-94), 

412. 
Bank  v.  Cooper  (20  Wall.  171),  190. 
Bank  of  Commerce  v.  Russell  (2  Dill. 

215;  2  Fed.  Oas.  647),  316. 
Bank  of  N.  0.  v.  Dewey  (19  N.  B.  R. 

314;  2  Fed.  Oas.  670),  295. 
Bank  v.  Sherman  (101  U.  S.  403),  114, 

386. 
Banks  v.  Ogden  (2  Wall.  57),  111. 
Barbour  v.  Priest  (103  U.  S.  293),  370. 
Barker     v.      Barker's     Assignee     (2 

Woods,  87;  2  Fed.  Gas.  807),  372. 
Barker      v.     Barker's     Assignee      (2 

Woods,  241;  2  Fed.  Oas.  809),  191. 
Barnard  v.  Hartford  P.  F.  R.  Go.  (2 

Fed.  Gas.  832),  184. 
Barnes  v.  Bellington  (1  Wash.  0.  G. 

29;  2  Fed.  Gas.  858  [1803]),  59,  62. 
Barnes  v.  Rettew  (28  Leg.  Int.  124; 

2  Fed.  Oas.  868),  359. 
Barnes   v.    Vetterlein   (16  Fed.   Eep. 

218),  371. 


Barnewall  v.  Jones  14  N.  B.  R.  278; 

2  Fed.  Gas.  882),  360. 
Barron  v.   Newberry   (1  Biss.   149;  2 

Fed.  Gas.  937),  245,  390. 
Barstow  v.  Peckham  (5  N.  B.  B.  92; 

2  Fed.  Gas.  651),  322. 
Bartholomew  v.  West  (2  Dill.  290;  2 

Fed.  Gas.  963),  83,  8B. 
Bartholow   v.    Bean    (18   Wall.   635), 

261. 
Bartles  v.  Gibson  (17  Fed.  Rep.  293), 

110,  152. 
Bartlett  v.  Mercer  (8  Ben.  439;  2  Fed. 

Oas.  976), 
Bartlett  v.  Russell  (4  Dill.  267;  2  Fed. 

Oas.  978),  335. 
Bayley  v.  University  (106  U.  S.  11), 

123. 
Bean    v.    Brookmire    (1    Dill.    151;   2 

Fed.  Gas.  1130),  281. 
Bean  v.  Brookmire  (2  Dill.  108;  2  Fed. 

Oas.  1132),  116. 
Bean  v.  Laflin   (15  N.  B.  R.  383;  2 

Fed.  Gas.  1139),  270. 
Beattie   v.    Gardner    (4   Ben.   497;   S 

Fed.  Gas.  1),  261. 
Bechtel's  Gase  (3  Fed.  Oas.  16),  176. 
Beecher  v.   Bininger   (7  Blatohf  170; 

3  Fed.  Gas.  49),  214. 

Beecher  v.  Clark  (12  Blatchf.  256;  2 

Fed.  Gas.  52),  391. 
Beecher   v.   Fox    (1    Fed.    Rep.    273), 

387. 
Beecher  v.   Gillespie   (6  Bep.  356;  3 

Fed.  Oas.  57),  277. 
Beers  v.  Place  (4  N.  B.  R.  459;  3  Fed. 

Gas.  71),  214. 
Belden  v.  Smith  (16  N.  B.  R.  302;  3 

Fed.   Gas.  83),  341,  396. 
Benjamin  v.  Hart  (4  Ben.  454;  3  Fed. 

Gas.  189),  188. 
Bennett  v.  Alexander  (1  Granch  C.  0. 

90;  3  Fed.  Gas.  203),  155. 
Bennett  v.  Mitchel  (6  Law  Rep.  16;  T 

Fed.  Oas.  462  [1842]),  274. 
Benton  v.  Allen  (2  Fed.  Rep.  448),  372. 
Blake    v.    Francis-Valentine    Go.     (8& 

Fed.  Rep.  691).  410,  414. 
Blennerhassett  v.  Sherman  (115  U.  S. 

100),  329. 
Blythe  v.  Thomas  (45  Fed.  Rep.  784), 

804. 
Boatman's  Bank  v.  State  Sav.  Assn. 

(114  U.  S.  265),  378. 
Boese  v.  King  (108  U.  S.  379),  354. 
Booth  V.  Glark  (17  How.  Sz2),  217. 
Boothroyd  Gase  (14  N.  B.  R.  232;  3 

Fed.  Gas.  881),  218. 
Borland  v.  Phillips  (2  Dill.  283;  3  Fed. 

Gas.  909),  282. 


Table  of  Cases  Cited. 


IX 


Bostwiek  v.  Foster  (14  Blatchf.  436; 

3  Fed.  Cas.  958),  327. 
Boutwell  V.  Allerdice  (2  Hughes,  121; 

3  Fed.  Cas.  1020),  49. 
Bowman  t.  Wilson  (12  Fed.  Rep.  864), 

318. 
Boyle  V.  Zachary  (6  Pet.  348),  408. 
Boynton  y.  Ball  (121  U.  S.  457),  123, 

155. 
Bracken  y.  Johnston   (4  Dill.   518;  3 

Fed.  Cas.  1120),  339,  356. 
Bradley  y.  Adams  Express  Co.  (3  Fed. 

Rep.  895),  236. 
Bradley  y.   Farwell   (Holmes,   433;   3 

Fed.  Cas.  1146),  354. 
Bradley  v.  Frost  (3  Dill.  457;  3  Fed. 

Cas.  1151),  356. 
Bradley   v.    Healey    (Holmes,   451;   3 

Fed.  Cas.  1153),  44. 
Bradshaw  v.  Klein  (2  Biss.  20;  3  Fed. 

Cas.  1176),  360. 
Briggs  V.  Stephens  (7  Xiaw  Rep.  281; 

4  Fed.  Cas.  124  [1844]),  44,  233. 
Bristol  T.  Sanford  (12  Blatchf.  341;  4 

Fed.  Cas.  162),  217. 
Briswalter  v.  Long  (14  Fed.  Rep.  153), 

69. 
Britton  y.  Pay  en  (7  Ben.  219;  4  Fed. 

Cas.  183).  260. 
Brock  V.  Hoppock  (2  N.  B.  R.  7;  4 

Fed.  Cas.  197),  166.  331. 
Brock  T.  Terrell  (2  N.  B.  R.  643;  4 

Fed.  Cas.  198),  343,  360. 
Bromley  v.  Smith  (2  Biss.  511;  4  Fed. 

Cas.  209),  300. 
Brookmire  y.  Bean  (3  Dill.  186:  4  Fed. 

Cas.  243),  123. 
Brooks  y.  Dayis  (1  Law  &  Eq.  Rep. 

196;  4  Fed.  Cas.  272).  363. 
Brooks   y.   D'Oryille   (7   Ben.   485;   4 

Fed.  Cas.  272),  364. 
Brown  y.  .Tefferson  Co.  Bank  (9  Fed. 

Rep.  258),  257,  316. 
Brown  y.  Wygant  (163  U.  S.  618),  219. 
Buchanan  v.   Dunn   (2  Hask.   215;  4 

Fed.  Cas.  573),  351. 
Buchanan   y.    Smith   (16   "Wall.    277), 

257,  276. 
Buckingham    v.    McLean    (13    How. 

151),  59. 
Buckingham  y.  McLean  (54  U.  S.  150), 

353. 
Buckley  y.  Buffington  (5  McLean,  457; 

4  Fed.  Cas.  615  [1853]),  355. 
Bucknam  y.Goss  (1  Hask.  630;  4  Fed. 

Cas.  575),  328. 
BuUard  y.  National  Eagle  Bank  (18 

Wall.  589),  345. 
BuUene  y.  Blain  (6  Biss.  22;  4  Fed. 

Cas.  646),  119. 


Burbank  y.  Biglowe  (92  V.  S.  179), 

185. 
Burdick  v.  Gill  (7  Fed.  Rep.  668),  358. 

370. 
Burkholder   y.    Stump.  (28   Leg.    Int. 

125;  4  Fed.  Cas.  749),  363. 
Burnhisel  y.  Firman  (22  Wall.  170), 

273. 
Burr  V.  Hopkins  (6  Biss.  345;  4  Fed. 

Cas.  814),  237. 
Burrill  y.  La  wry  (2  Hask.  228;  4  Fed. 

Cas.  829).  366. 
Bush  y.  Cooper  (18  How.  82),  156. 
Byrd  y.  Harrold  (18  N.  B.  R.  433;  4 

Fed.  Cas.  »49),  46,  49. 


Cady  y.  Whaling  (7  Biss.  430;  4  Fed. 

Cas.  990),  363. 
Cameron  y.  Canieo  (9  N.  B.  R.  527;  4 

Fed.  Cas.  1128),  28. 
Campbell  v.  Traders'  N.  Bank  (2  Biss. 

423;  4  Fed.  Cas.  1192),  257,  261. 
Campbell  y.  Waite  (9  Ben.  166;  4  Fed. 

Cas.  1205),  280. 
Campbell's  Case  (1  N.  B.  R.   165;  4 

Fed.  Cas.  1153),  45. 
Capelle  v.  Hall  (12  N.  B.  R.  1;  5  Fed. 

Cas.  34),  296. 
Carey  y.  Nagle  (2  Biss.  244;  5  Fed. 

Cas.  60),  213. 
Carlisle  y.  Dayis  (9  Ben.  18;  5  Fed. 

Cas.  75),  405. 
Carlton  (5  Law  Rep.  120;  5  Fed.  Cas. 

86  [1842]),  32. 
Carr  v.   Gale   (2  Ware,   3.30;   5  Fed. 

Cas.  118  [1847] ;  affid.,  3  W.  &  M. 

38;  5  Fed.  Cas.  123),  186,  214. 
Carr  y.  Hilton  (1  Curt.  230;  5  Fed. 

Cas.  134  [1852]),  389. 
Carr  y.  Hilton  (1   Curt.  390;  5  Fed. 

Cas.  137  [1853]),  180. 
Castle  y.  Lee  (11  N.  B.  B.  80;  5  Fed. 

Cas.  281),  277. 
Catlin  y.  Foster  (1  Saw.  37;  5  Fed. 

Cas.  303),  243,  351. 
Catlin  y.  Hoffman  (2  Saw.  286;  5  Fed. 

Cas.  307),  277,  331,  360. 
Oayanna  y.  Bassett  (3  Fed.  Rep.  215), 

123. 
Chandler  y.  Siddle  (3  Dill.  477;  5  Fed. 

Cas.  459),  30. 
Chapman  y.  Brewer  (114  U.  S.  158), 

168,  185,  384. 
Chapman   t.   Forsyth   (2  How.   202), 

153    154. 
Christy  (3  How.  292),  37. 
Citizens'  Bank  y.  Ober  (1  Woods,  80; 

5  Fed.  Cas.  733),  403,  404. 
Claflin  V.  Houseman  (93  TJ.   S.  130), 

185. 


Table  op  Cases  Cited. 


Claridge  v.  Kulmer  (1  Fed.  Rep.  399), 

274,  373. 
Clarion  Bank  v.  Jones  (21  Wall.  325), 

61,  257,  258,  359. 
Clark  V.  Beeeher  (154  V.  S.  631),  371. 
Clark  V.  Clark  (17  How.  315),  111,  373. 
Clark  V.  Ewing  (3  B^ed.  Rep.  83),  39. 
Clark  V.  Iseiln  (21  Wall.  360^  59,  273. 
Clark  Y.  Iselin  (9  Blatchf.  196;  5  Fed. 

Cas.  880),  192. 
Clark  V.  Iselin  (10  Blatchf.  20-1;  5  Fed. 

Cas.  881),  260,  268,  271. 
Clark  V.  Marx  (5  Fed.  Cas.  898),  375. 
Clark  V.   Skilton   (5  Fed.    Cas.   925), 

375. 
Clark  V.  Sparhawk  (5  Fed.  Cas.  928), 

378. 
Clarke  v.  Rist  (3  McLean,  494;  5  Fed. 

Cas.  978  [1844]),  335. 
Cleary  v.  Ellis  Foundry  Co.   (132  U. 

S.  612),  110,  114. 
Cleveland  Ins.  Co.  v.  Globe  Ins.  Co. 

(98  U.  S.  366),  190,  193. 
Cleveland   I.   Co.   v.   Reed   (24   How. 

284;,  401. 
Clinton  v.   Mayo  (12  N.  B.  R.  39;  5 

Fed.  Cas.  1057),  252. 
Coggeshall  v.   Potter   (Holmes,   75;  6 

Fed.  Cas.  3),  324,  363. 
Coit  V.  Robinson  (19  Wall.  274), 
Collins   V.   Bell   (3   N.    B.   R.   587;   6 

Fed.  Cas.  118),  362. 
Collins  V.  Gray  (8  Blatchf.  483;  6  Fed. 

Cas.  125),  281. 
Collins   V.   Hood   (4  McLean,   186;   6 

Fed.  Cas.  129  [1846]),  74. 
Commercial     Bank    v.     Buckner     (20 

How.  108),  149. 
Connell  v.  Crane  (94  U.  S.  441),  194. 
Conner  v.  Long  (104  U.  S.  228),  358. 
Conro  V.  Crane  (94  U.  S.  441),  174. 
Cook  V.   Lansing  (3  McLean,  571;   6 

Fed.  Cas.  412  [1847]),  108.  ' 
Cook  V.  Sherman  (20  Fed.  Rep.  167), 

110. 
Cook  V.  TuUis  (18  Wall.  332),  58. 
Cookingham  v.  Ferguson   (8  Blatchf. 

488;  6  Fed.  Cas.  450),  270,  372. 
Corbett  v.  Woodbury  (5  Saw.  403;  6 

Fed.  Cas.  531),  270,  292. 
Cory  V.  Clark  (2  N.  J.  Law  J.  122;  6 

Fed.  Cas.  606),  77. 
Cox  V.  Wilder  (2  Dill.  45;  6  Fed.  Cas. 

684;  revg.  5  N.  B.  R.  443;  6  H'ed. 

Cas.   685),   83. 
Coxe  V.  Hale  (10  Blatchf.  56;  6  Fed. 

Cas.  689),  60,  270. 
Cragin  v.  Carmichael  (2  Dill.  519;  6 

Fed.  Cas.  706),  282,  324.  ■ 


Cragin  v.   Thompson   (2   Dill.   513;  6 

Fed.  Cas.  708),  58,  360. 
Cramer  v.  Cohns  (119  TJ.  S.  355),  407. 
Cramton  v.  Tarbell  (6  Fed.  Cas.  745), 

326. 
Crane  v.  Morrison  (4  Saw.  138;  6  Fed. 

Cas.  757),  73. 
Crane  v.  Penny  (2  Fed.  Rep.  187),  280, 

332 
Crawfo'rd  v.  Halsey  (124  U.  S.  e48>, 

401. 
Creditors  v.  Cozzens  (3  N.  B.  R.  281;  6 

Fed.  Cas.  793),  33. 
Creditors  v.  Williams  (4  N.  B.  R.  579; 

6  Fed.  Cas.  793),  130. 
Crompton  v.  Conkling  (9  Ben.  225;  6 

Fed.  Cas.  848),  72,  78,  212. 
Crompton  v.   Conkling   (15   N.   B.   R. 

417;  6  Fed.  Cas.  850),  78. 
Crooks  v.  Stuart  (7  Fed.  Rep.  800),  36, 

358. 
Crump  V.  Chapman  (1  Hughes,  188;  6 

Fed.  Cas.  924),  361. 
Cunningham   v.    Cady    (13   N.    B.   R. 

525;  6  Fed.  Cas.  966),  62,  230. 
Cunningham    v.    Morgan    (7    Blatchf. 

480;  6  Fed.  Cas.  454),  364. 
Curran  v.  Munger  (6  N.  B.  R.  33;  6 

Fed.  Cas.  982),  191,  263,  275. 
Curry    v.    McCauley    (20    Fed.    Rep. 

583),  325. 
Cutter  V.  Dingee  (8  Ben.  469;  6  Fed. 

Cas.  1078),  44. 


Dallet  T.  Flues  (28  Leg.  Int.  325;  6 

Fed.  Cas.  1120),  233. 
Darby  v.  Boatman's  Sav.  Inst.  (1  Dill. 

141;  6  Fed.  Cas.  1179),  300,  352. 
Darby  v.   Lucas   (5  i>.  B.   R.  437;  1 

Dill.  164;  6  Fed.  Cas.  1183,  1184), 

271,  366. 
Darling    v.    Townsend    (5    Fed.    Rep. 

176),  258,  267. 
David  V.  Friedlander  (104  U.  S.  570), 

106,  108. 
Davis  V.  Anderson  (6  N.  B.   R.  145; 

7  Fed.   Cas.   103),   114,   237,  340, 

360. 
Davis  V.  R.  R.  Co.  (1  Woods,  661;  7 

Fed.  Cas.  164),  40. 
Davis  V.   Stitzer  (19  N.   B.   R.  61;  7 

Fed.  Cas.  177),  350. 
Dewey  v.  Kelton  (18  N.  B.  R.  217;  7 

Fed.  Cas.  573),  395. 
Dickey  v.   Harman   (1   Cranch   O.   O. 

201;  7  Fed.  Cas.  674  [1804]),  349. 
Dickinson  v.  Adams  (4   Saw.  257;  7 

Fed.  Cas.  676),  365. 


Table  of  Cases  Cited. 


XI 


Dimock  v.  Revere  Copper  Co.  (117  TJ. 

S.  559),  155. 
Dingee  v.  Becker  (9  N.  B.  E.  508;  7 

Fed.  Cas.  724),  146. 
Dixon  V.  Barnum  (3  Hughes,  207;  fl 

Fed.  Cas.  748),  155. 
Doe  V.  Childress  (21  Wall.  642),  104. 
Doe  T.  Hyde  (114  V.  S.  247),  111. 
Doggett  V.  Emerson  (1  Woodb.  &  M. 

195;  7  Fed.  Cas.  821,  [1846]),  152. 
Donald,   Case  of,   (7  Fed.   Cas.  889), 

399 
Donaldson   (1  N.   B.  R.  181;  7  Fed. 

Cas.  881),  32. 
Donaldson  v.  Farwell  (5  Biss.  451;  7 

Fed.  Cas.  883;  affid.,  93  U.  S.  631), 

347. 
Donaldson  v.  Farwell  (93  TJ.  S.  631), 

215. 
Done  T.  Compton  (2  N.  B.  R.  607;  7 

Fed.  Cas.  776),  56. 
Dooley  v.  Virginia  M.  &  F.  I.  Co.  (2 

Hughes,  847;  7  Fed.  Cas.  912),  50. 
Doty  V.   Johnson   (6  Fed.   Rep.  481), 

112. 
Douglass  V.  Vogeler  (6  Fed.  Cas.  53), 

323,  325. 
Downer  v.  Brackett  (5  Ir.  J.  392;  7 

Fed.   Cas.  102   [1842]),   330,   334, 

385. 
DoTvning   v.    Traders'    Bank    (2   Dill. 

136;  7  Fed.  Cas.  1008),  289. 
Drake  v.  RoUo  (3  Biss.  273;  7  Fed. 

Cas.  1053),  379. 
Dudley  v.  Easton  (104  U.  S.  99),  217. 
DudleS^'s  Case  (1  Penn.  L.  .T.  302;  7 

Fed.  Cas.  1150  [1842]),  41,  334. 
Duff  T.   Carrier   (55   Fed.   Rep.  433), 

232. 
Duff  V.  Hopkins  (39  Fed.  Rep.  599), 

195. 
Dunning  t.   Perkins   (2   Biss.  421;   8 

Fed.  Cas.  104),  277,  362. 
Durant  v.  Hospital  L.  I.  Co.  (2  Low. 

575;  8  Fed.  Cas.  114),  395. 
Duser  v.  Murgatroyd  (1  Wash.  C.  C. 

13;  8  Fed.  Cas.  140  [1803]),  155. 
Dushane  v.  Beall  (161  U.  S.  513),  109, 

390. 
Dutcher    v.     Marine     N.     Bank     (12 

Blatchf.   435;    8   Fed.    Cas.    152), 

397 
Dutcher  v.  Wright  (94  TJ.  S.  553),  278. 
Dutton  V.  Freeman  (5  Law  Rep.  447; 

8  Fed.  Cas.  175  [1842]),  23,  130, 

163,  230. 

E. 
Eastburn  v.  Yardley  (30  Leg.  Int.  404; 
8  Fed.  Cas.  266),  338. 


Ecfort  V.  Greely  (6  N.  B.  R.  433;  8 

Fed.  Cas.  279),  54,  290. 
Edmondson  v.   Hyde  (2  Saw.  205;  8 

Fed.  Cas.  324),  88,  301. 
Eiseman  v.  Maul  (12  Chi.  Leg.  News, 

112;  8  Fed.  Cas.  397),  390. 
Emery  v.  Canal  N.  Bank  (3  Cliff.  407; 

8  Fed.  Cas.  644),  81. 

Erwin  v.  U.  S.  (97  U.  S.  392),  386. 
Everett  v.  Derby  (5  Law  Rep.  225;  8 

Fed.  Cas.  897  [1842]),  104. 
Everett  v.  Stone  (3  Story,  446;  8  Fed. 

Cas.  898  [1844]),  266. 
Byster  v.  Gaff  (91  U.  S.  521),  36,  219. 
Ex  parte  Bennett  (1  Penn.  L.  J.  145; 

3  Fed.  Cas.  203  [1842]),  331. 

Ex  parte  Briggs  (2  Low.  389;  4  Fed. 

Cas.  113),  148. 
Ex   parte   Bryan   (2  Hughes,   278;   4 

Fed.  Cas.  499),  399. 
Ex  parte  Calendar  (5  Law  Rep.  125; 

4  Fed.  Cas.  1044  [1843]),  253. 
Ex  parte  Caylus  (1  Low.  550;  5  Fed. 

Cas.  325),  351,  377. 
Ex  parte  Christy  (3  How.  292,  194. 
Ex  parte  Columbian  Ins.  Co.  (2  Low. 

5;  6  Fed.  Cas.  176),  296. 
Ex  parte  Corse  (1  N.  Y.  Leg.  Obs.  231; 

6  Fed.  Cas.  600),  171. 
Ex  parte  Dalby  (1  Low.  431;  6  Fed. 

Cas.  116),  238,  326. 
Ex  parte  Davenport  (1  Low.  384;  7 

Fed.  Cas.  6),  228. 
Ex  parte  Drewry  (2  Hughes,  435;  7 

Fed.  Cas.  1074),  244,  349. 
Ex  parte  Eames  (2  Story,  322;  8  Fed. 

Cas.  236), 
Ex  parte  Farnsworth  (1  Low.  497;  8 

Fed.  Cas.  1055),  288. 
Ex  parte  Faxon  (1  Low.  404;  8  Fed. 

Cas.  1109),  310. 
Ex  parte  Fitz   (2  Low.   519;   9  Fed. 

Cas.  185),  327,  350. 
Ex  parte  Flannagans  (2  Hughes,  264; 

9  Fed.  Cas.  247),  395. 

Ex  parte  Foster  (5  Law  Rep.  406;  9 

Fed.  Cas.  507  [1842]),  248. 
Ex  parte  Fost*  (2  Story,  131;  9  Fed. 

Cas.  508  [1842]),  147,  307,  385. 
Ex    parte   Freedley    (Crabbe,    544;    9 

Fed.  Cas.  744  [1844]),  255. 
Ex  parte  Garwood  (Crabbe,   516;   10 

Fed.  Cas.  58  [1843]),  261. 
Ex  parte  Gen.  Assignee  (5  Law  Rep. 

362;  10  Fed.  Cas.  164  [1842]),  345, 

385. 
Ex  parte  Gen.  Assignee  (1  N.  Y.  Leg. 

Obs.  131;  10  Fed.  Cas.  1068),  394. 
Ex  parte  Hale  (5  Law  Rep.  403;  11 

Fed.  Cas.  179  [1842]),  314. 


xu 


Tablb  op  Cases  Cited. 


Ex   parte   Hamlin    (2   Low.   571;    11 

Fed.  Cas.  367),  125,  207,  245. 
Ex  parte  Harris  (2  Low.  568;  11  Fed. 

Cas.  606),  230,  296. 
Ex  parte  Harris  (3  N.  Y.  Leg.  Obs. 

152;    11   Fed.    Oas.    606    [1845]), 

254. 
Ex  parte  Harris  (3  N.  Y.  Leg.  Obs. 

152;   11   Fed.    Cas.    607    [1845]), 

164. 
Ex  parte  Harwood   (Crabbe,  496;  11 

Fed.  Cas.  762  [1842]),  234. 
Ex  parte  Hobbs  (2  Low.  491;  12  Fed. 

Cas.  260),  317. 
Ex  parte  Houghton  (1  Low.  554;  12 

Fed.  Cas.  584),  294. 
Ex  parte  Houghton  (1  Low.  554;  12 

Fed.  Cas.  584),  311. 
Ex  parte   Howard   (2  Low.   487;   12 

Fed.  Cas.  658),  378,  379. 
Ex  parte  Jewett  (2  Low.  393;  13  Fed, 

Cas.  580),  160. 
Ex  parte  Kelty  (1  Low.  304;  14  Fed, 

Cas.  277),  290. 
Ex  parte  Lake  (2  Low.  544;  14  Fed 

Cas.  942),  294,  296. 
Ex  parte  Lapsley  (1  Penn.  L.  J.  245 

14  Fed.  Cas.  835),  235. 

Ex  parte  Lee  (1  N.  Y.  Leg.  Obs.  83; 

15  Fed.  Cas.  134  [1842]),  384. 

Ex   parte   Mandell    (1   Low.   506;   17 

Fed.  Cas.  1),  327. 
Ex  parte  Morris  (2  Low.  424;  17  Fed. 

Cas.  783),  233,  325. 
Ex    parte   Morrow    (1    Low.    386;    17 

Fed.  Cas.  845),  344. 
Ex  parte  Newhall   (2  Story,   360;   18 

Fed.    Cas.   75    [1842]),    380,    388, 

398. 
Ex  parte  O'Neill  (1  N.  B.  R.  677;  18 

Fed.  Cas.  714  [1867]),  242. 
Ex  parte  Pollard  (2  Low.  411;  19  Fed. 

Cas.  942),  287. 
Ex  parte  Potts  (Crabbe,  469;  19  Fed. 

Cas.  1199  [1842]),  159,  248. 
Ex  parte  Quackenboss  (1  N.  Y.  Leg. 

Obs.     146;     20     Fed.     Cas.     104 

[1842]),  354. 
Ex  parte  Randall  (5  Law  Rep.  115; 

20  Fed.  Cas.  221  [1842]),  254. 
Ex  parte  Rockett  (2  Low.  522;  20  Fed. 

Cas.  1070),  304. 
Ex    parte    Shouse    (Crabbe    482;    22 

Fed.  Cas.  27  [1842]),  247,  264. 
Ex  parte  Steiner  (22  Fed.  Cas.  1234), 

315. 
Ex  parte  Taylor  (1  Hughes,  617;  23 

Fed.  Cas.  727),  153. 
Ex  parte  Tebbets  (5  Law  Rep.  503;  23 

Fed.  Cas.  825  [1842]),  393. 


Ex  parte  Trafton  (2  Low.  505;  24  Fed. 

Cas.  122),  124,  231. 
Ex   parte   Traphagen   (1   N.   Y.    Leg.- 

Obs.  98;  24  Fed.  Cas.  134  [1842]), 

128. 
Ex  parte  Tremont  Nail  Co.  (16  N.  B. 

R.  448;  24  Fed.  Cas.  183),  348. 
Ex  parte  Waddell  (1  N.  Y.  Leg.  Obs. 

53;    28   Fed.    Cas.    1312    [1843]), 

387. 
Ex  parte  Whitcomb  (2  Low.  523;  29 

Fed.  Cas.  962),  220. 
Ex  parte   Whiting   (2   Low.   472;   29 

Fed.  Cas.  1053),  380. 
Ex   parte   Woollen   (104  TJ.   S.   300), 

188. 
Ex  parte  Wright  (1  West.  L.  J.  143; 

30  Fed.  Cas.  655  [1843]),  153. 
Ex  parte  Young  (  6  Biss.  53;  30  Fed. 

Cas.  828  [1874]),  285. 

P. 

Factor  I.  Co.  v.  Murphy  (111  U.  S. 

738),  403. 
Fairbanks  v.  Bank  (38  Fed.  Rep.  630), 

114,  125. 
Farmers  &  Drovers'  S.  Bank   v.  Kas. 

City  Pub.  Co.  (3  Dill.  287;  8  Fed. 

Cas.  1027),  345. 
Farmers  Co.  v.  Eno  (35  Fed.  Rep.  89), 

401. 
Farrin  v.  Crawford  (2  N.  B.  R.  602; 

8  Fed.  Cas.  1084),  54. 
Feibelman  v.  Packard  (109  TJ.  S.  421), 

51. 
Fellows  V.  Burnap  (14  Blatchf.  63;  8 

Fed.  Cas.  1131),  188. 
Fellows  V.   Hall  .(3   McLean,  281;  8 

Fed.  Cas.  1132  [1843]),  147. 
Ferguson  v.  Dent  (24  Fed.  Rep.  412), 

387. 
Ferguson   v.    Peckham    (6   N.    B.    R. 

569;  8  Fed.  Cas.  1152),  214. 
Field  V.  Baker  (12  Blatchf.  438;  9  Fed. 

Cas.  9),  259,  352. 
Firemen's  Ins.   Co.  v.  Hemingway  (9 

Fed.  Cas.  75),  362. 
First  National  Bank  v.  Cook  (154  TJ. 

S.  628),  392. 
Fisher  v.  Currier  (5  Law  Rep.  217;  Q 

Fed.  Cas.  127  [1842]),  60,  72. 
Fisher  v.  Henderson  (8  N.  B.  R.  175; 

9  Fed.  Cas.  132),  362. 

Fiske  V.  Hunt  (2  Story,  582;  9  Fed. 

Cas.  169  [18421).  333. 
Fitch  V.  MoOie  (2  Biss.  163;  9  Fed. 

Cas.  180),  59,  260. 
Floitas  V.  Mellen  (39  Fed.   Rep.  129 

[1889]),  347. 


Table  of  Cases  Cited. 


xiu 


Fleitas  v.  Richardson  (147  U.  S.  550), 

156. 
Fleming  v.  Andrews  (3  Fed.  Rep.  632), 

265,  380. 
Fletcher  v.   Morey   (2   Story,    555;   9 

Fed.  Cas.  266  [1843]),  ,350,  399. 
Flower  v.    Greenbaum    (2   Fed.   Rep. 

897),  156. 
Flower  T.  Greenbaum  (50  Fed.   Rep. 

190),  226. 
Fogarty  v.  Garrity  (1  Saw.  233;  9  Fed. 

Cas.  330),  26. 
Fogg  V.  Stickly  (11  N.  B.  R.  167;  9 

Fed.  Cas.  334),  290. 
Ford  V.  Keys  (4  Chi.  Leg.  News,  156; 

9  Fed.  Cas.  426),  257. 
Forman  v.   Campbell   (9  Ben.  472;  9 

Fed.  Cas.  450),  214. 
Forsaith   v.   Merritt   (1   Low.   336;   9 

Fed.  Cas.  464),  281,  364. 
Foster  (2  Story,  131;  9  Fed.  Cas.  508 

[1842]),  32. 
Foster  t.  Ames  (1  Low.  313;  9  Fed. 

Cas.  527),  186,  216.  284,  402. 
Foster  v.  Hacldey  (2  N.  B.  R.  406;  9 

Fed.  Cas.  54.51,  373. 
Foster  v.  Inglee  (13  X.  B.  R.  239;  9 

Fed.  Cas.  554),  355. 
Foster  v.  Rhodes  (10  N.  B.  R.  523;  9 

Fed.  Cas.  572),  406. 
Fowle  T.  Parlie  (48  Fed.   Rep.  789), 

124,  147. 
Fowler  v.   Dillon   (1  Hnghes,   232;   9 

Fed.  Cas.  616),  32. 
Fox  V.  Eckstein  (4  N.  B.  R.  373;  9 

Fed.  Cas.  626),  56. 
Fox  V.  Gardner  (21  Wall.  475),  261, 

279. 
Franklin   S.   F.    Soc,   Estate   of     (31 
Leg.  Int.  173;  9  Fed.   Cas.   715), 

218 
Frazier  v.  McDonald  (8  N.  B.  R.  237; 

9  Fed.  Cas.  737),  100. 
French   v.   First   Nat.   Bank   (8  Ben. 

248;  9  Fed.  Cas.  787),  270. 
Fullings  V.  Fullings  (3  N.  J.  L.  J.  270; 

9  Fed.  Cas.  991),  114,  214. 


Gaffney's  Assignee  v.  Signaio  (1  Dill. 

158;  9  Fed.  Cas.  1026),  270,  324. 
Galbraith  (1  N.  Y.  Leg.  Obs.  5;  9  Fed. 

Cas.  1077  [1842]),  55. 
Galvin  v.  Boyd  (25  Fittsb.  L.  J.  14;  9 

Fed.  Cas.  1140),  213. 
Gardner  v.  Cook  (7  N.  B.  R.  346;  9 

Fed.  Cas.  1165),  304,  307. 
Garrison  v.  Markley  (7  N.  B.  R.  246; 

10  Fed.  Cas.  53),  179. 


Gaskill  V.  Betton  (8  Fed.  Rep.  746), 

336. 
Gassett  v.  Morse  (21  Vt.  627;  10  Fed. 

Cas.  79  [1843]),  54,  406. 
Gattmen  v.  Honea  (12  N.  B.  R.  493; 

10  Fed.  Cas.  89),  350. 
Gauss  V.  Schrader  (48  Fed.  Rep.  816), 

80. 
Gay  lor  t.   American   (5   Biss.   86;   10 

Fed.  Cas.  124),  357. 
Gazin  v.  Norton  (38  Fed.  Rep.  200), 

284,  305. 
Getz  T.  First  Nat.  Bank  (10  Fed.  Cas. 

273),  47. 
Gibson  v.  Dobie  (5  Biss.  198;  10  Fed. 

Cas.  316),  263. 
Gibson  v.  Warden  (14  Wall.  244),  267. 
Giddings  t.  Dodd  (1  Dill.  116;  10  Fed. 

Cas.  338),  267. 
Gifeord  v.  Helms  (98  TJ.  S.  248),  401. 
Gilbert  v.  Quinby  (1  Fed.  Rep.  Ill), 

320. 
Gillespie   v.   McKnight    (3   N.   B.    R. 

468;  10  Fed.  Cas.  385),  364. 
Gindrat  v.  Dane  (4  Clife.  260;  10  Fed. 

Cas.  434),  186. 
Giveen  v.  Smith  (1  Hask.  296;  10  Fed. 

Cas.  451),  364. 
Giveen  v.  Smith  (1  Hask.  358;  10  Fed. 

Cas.  454),  185,  402. 
Glenn  v.  Abell  (39  Fed.  Rep.  10),  285. 
Glenny  v.  Langdon  (98  U.  S.  20),  373. 
Globe  Ins.  Co.  v.  Cable  Ins.  Co.  (14 

N.  B.   R.  311;   10  Fed.   Cas.  48), 

364. 
Goddard  v.  Weaver  (1  Woods,  257;  10 

Fed.  Cas.  513),  337. 
Goldsmith  v.  Hapgood  (Holmes,  454; 

10  Fed.  Cas.  568),  397. 
Golson  V.  Neihoff  (2  Biss.  434;  10  Fed. 

Cas.  569),  277,  340. 
Goodall  y.  Tuttle  (3  Biss.  219;  10  Fed. 

Cas.  579),  47,  214. 
Goodrich  v.  Dobson  (43  Conn.  576;  30 

Fed.  Cas.  1081  [1876]),  381. 
Goodrich  v.  Huuton  (2  Woods,  137;  10 

Fed.  Cas.  608),  146. 
Goodrich    v.    Remington    (6    Blatchf. 

515;  10  Fed.  Cas.  611),  30. 
Graham  v.  Boston  H.  &  E.  R.  Co.  (14 

Fed.  Rep.  753),  168. 
Graham  v.  Boston  H.  &  E.  R.  Co.  (118 

U.  S.  161),  168. 
Graham  v.  Stark  (3  Ben.  520;  10  Fed. 

Cas.  939),  269,  277. 
Granis    v.    Beardsley    (10   Fed.    Caa. 

964),  364. 
Graves  v.  Winter  (9  N.  B.  R.  357;  10 

Fed.  Cas.  999),  50. 
Gray  v.  Beck  (6  Fed.  Rep.  595),  358. 


XIT 


Table  of  Cases  Cited. 


Greely  v.  Scott  (2  Woods,  657;  10  Fed. 

Cas.  1072),  85. 
Green  v.  Sarmiento  (Pet.  C.  C.  74;  10 

Fed.  Cas.  1117),  155. 
Greene  v.  Taylor  (132  U.  S.  415),  110, 

114. 
Greenwald   v.    Appell    (17   Fed.   Rep. 

140),  299. 
Grow  V.  Ballard  (2  N.  B.  R.  194;  11 

Fed.    Cas.   88),   89. 
Gulick's  Bx'rs  v.  Mclver  (3  Cranch  C. 

C.  650;  11  Fed.  Cas.  110  [1804]), 

217. 

H. 

Hall  (5  Law  Rep.  269;  11  Fed.  Cas. 

196  [1842]),  28. 
Hall  V.  Allen  (12  Wall.  452),  193,  194. 
Hall  V.  Greenbaum  (33  Fed.  Rep.  22), 

299. 
Hall  V.   Hayner   (3   Chi.    Leg.   News, 

402;  11  Fed.  Cas.  226),  328. 
Hall  V.  Scovel  (10  N.  B.  R.  295;  11 

Fed.  Cas.  253),  389,  400. 
Hall  V.  Wager   (3  Biss.  28;   11  Fed. 

Cas.  271),  266,  275. 
Halleck  v.  Tritch   (17  N.  B.   R.  293; 

11  Fed.  Cas.  286),  186,  189,  271. 
Hamilton  v.  Nat.  Loan  Bank  (3  Dill. 

230;  11  Fed.  Cas.  362),  395. 
Hamlin  v.  Pettibone  (6  Biss.  167;  11 

Fed.  Cas.  373),  366. 
Hampton  v.  Rouse  (22  Wall.  263),  98. 
Harding  v.  Crosby  (17  Blatchf.  348; 

11  Fed.  Cas.  490),  363. 
Harrington  v.  Fire  Ass'n  (11  Fed.  Cas. 

605),  333. 
Harris  v.  Exchange  Nat.  Bank  (4  Dill. 

133;  11  Fed.  Cas.  624),  365. 
Harrison  v.    McLaren    (10  N.    B.    R. 

244;  11  Fed.  Cas.  654),  270. 
Harrison  v.  Sterrv  (Bee,  244;  11  Fed. 

Cas.  669  [1807]),  308. 
Harrison   v.    Sterry   (5   Cranch,   289), 

•   72,  308,  406. 
Harmanson  v.   Bain   (1   Hughes,   188; 

11  Fed.  Cas.  531),  373. 
Harmanson  v.  Bain  (1  Hughes,  391: 

11  Fed.  Cas.  539),  377. 
Harmon  v.  .Tamesson  (1  Cran';h.  0.  C. 

288;  11  Fed.  Cas.  555  [1806]),  337. 
Hartz  (1  N.  Y.  Leg.  Obs.  39;  11  Fed. 

Cas.  722   [1842]),  67. 
Harvey  v.  Crane  (2  Biss.  496;  11  Fed. 

Cas.  734),  264. 
Harvey  v.  Gage  (31  Fed.  Rep.   275), 

113. 
Haskell   V.   Ingalls   (1   Hask.  341;   11 

Fed.  Cas.  772),  260. 


Haskill  V.  Fry  (14  N.  B.  R.  525;  11 

Fed.  Cas.  777),  268. 
Hatfield  v.  Moller  (4  Fed.  Rep.  717), 

107. 
Haughey   v.   Albin   (2  Bond,   244;   11 

Fed.  Cas.  837),  260. 
Haughton  v.  Eustis  (5  Law  Rep.  505; 

11  Fed.  Cas.  841  [1842]),  334. 
Haukins  v.  First  Nat.  Bank  (1  Dill. 

462;  11  Fed.  Cas.  479),  324. 
Hauselt  v.  Harrison  (105  V.  S.  401), 

273. 
Hawkins  v.  First  Nat.  Bank  (1  Dill. 

453;  11  Fed.  Cas.  880),  189. 
Hazleton  v.  Valentine  (1  Low.  270;  11 

Fed.  Cas.  942),  28. 
Hennequin  v.   Clews   (11  U.   S.  676), 

153. 
Henry  v.  La  Societe  Francalse  (95  TT. 

S.  58),  235. 
Hersey  v.  Fosdick  (20  Fed.  Rep.  44), 

319. 
Hester  v.  Baldwin  (2  Woods,  433;  12 

Fed.  Cas.  69),  230. 
Hewitt  V.   Norton   (1  Woods,   68;  12 

Fed.  Cas.  71),  41. 
Hill  V.  Harding  (107  U.  S.  631),  109. 
Hill  V.  Harding  (130  U.  S.  699),  105. 
Hill  V.  Thompson  (94  U.  S.  322),  194. 
Hills  V.  Alden  (2  Hask.  299;  12  Fed. 

Cas.  189),  399,  401,  403. 
Hitchcock   V.   RoUo   (3   Biss.   276;  12 

Fed.  Cfis.  231;  6  Chi.  Leg.  News, 

9;  12  Fed.  Cas.  237),  378,  380. 
Hobson  V.   Markson  (1  Dill.  421;  10 

Fed.  Cas.  269),  168,  399. 
Hood  V.  Karper  (5  N.  B.  R.  358;  12 

Fed.  Cas.  456),  237,  356. 
Hood  V.  Spencer  (4  McLean,  168;  12 

Fed.  Cas.  459),  73,  155. 
Hoover  v.  Wise  (91  U.  S.  808),  335. 
Hopkins  v.   Carpenter   (18   N.   B.   R. 

339;  12  Fed.  Cns.  492),  49. 
Hough   v.    First   Nat.    Bank   (4  Biss. 

349;  12  Fed.  Cas.  564),  262. 
Houston  V.  City  Bank  (6  How.  486), 

402. 
Hovey  v.  Home  Ins.  Co.  (10  N.  B.  R. 

224:  12  Fed.  Cas.  604).  379. 
Howard  v.  Crompton  (14  Blatchf.  328; 

12  Fed.  Cas.  639),  215. 

Howell  V.  Todd   (12  Fed.   Cas.  707), 

262. 
Hubbard  v.  Alaire  Works  (7  Blatchf. 

284;  12  Fed.  Cas.  776),  281,  282. 
Hudgins  v.  Lane  (2  Hughes,  361;  12 

Fed.  Cas.  800),  70,  72. 
Hudson  V.  Adams  (18  N.  B.  R.  102; 

12  Fed.  Cas.  806),  334. 


Table  of  Cases  Cited. 


XV 


Hudson  V.  Schwab  (18  N.  B.  R.  480; 

12  Fed.  Cas.  814),  183. 
Hull  (1  N.  Y.  Leg.  Obs.  1;   12  Fed. 

Cas.  853),  69. 
Humphreys    v.    Blight's    Assignee    fl 

Wash.  C.  C.  44;  2  Fed.  Cas.  875 

[1803]),  289. 
Hunker  v.  Bing  (9  Fed.  Rep.  277),  307. 
Hunt  T.   Holmes   (16  N.   B.   R.   101; 

12  Fed.  Cas.  916),  381. 
Hunt  V.  Jackson  (5  Blatchf.  349;  12 

Fed.  Cas.  924),  50. 
Hunt  V.  Pooke  (5  N.  B.  R.   101;  12 

Fed.  Cas.  930),  66,  67.  158. 
Huntington  v.  Saunders  (64  Fed.  Rep. 

476),  149,  190. 
Hurley  t.  Smith  (1  Hask.  308;  12  Fed. 

Cas.  1014),  329. 
Hurst  T.   Teft   (12   Blatchf.    217;   12 

Fed.  Cas.  1044),  184,  316,  341. 
Hutchins  v.  Muzzy  Iron  Works  (8  N. 

B.  R.  458;  12  Fed.  Cas.  1076),  45. 
Hyde  v.  Cohen  (11  N.  B.  R.  461;  12 

Fed.  Cas.  1106),  390. 
Hyde  v.  Corrigan  (9  N.  B.  R.  466;  12 

Fed.  Cas.  1106),  61. 
Hyde  t.  Sontag  (1  Saw.  249;  12  Fed. 

Cas.   1113),   372. 
Hyde  v.  Woods  (94  U.  S.  523),  273. 
Hyslop  V.   Hoppock   (5   Ben.   533;   12 

Fed.  Cas.  1141),  166. 


In  A.  B.,  re  (3  Ben.  66;  1  Fed.  Cas.  2), 

208. 
In  A.  B.,  re    (8  N.  B.  R.  244;  1  Fed. 

Cas.  3),  202. 
In  Abbe,  re   (7  A.  L.  Reg.  (N.  C.)  824; 

1  Fed.  Cas.  3),  70. 
In  Abbott,  re   (1  Hask.   250;   1  Fed. 

Cas.  15),  34. 
In  Abrahams,  re    (5  Law   Rep.  328; 

7  Fed.  Cas.  40  [1842]),  384. 
In  Adams,  re   (29  Fed.  Rep.  843),  74. 
In  Adams,  re   (2  Ben.  503;  1  Fed.  Cas. 

78),  174. 
In  Adams,  re    (3  Ben.  7;  1  Fed.  Cas. 

81),  175. 
In  Adams,  re   (5  Ben.  544;  1  Fed.  Cas. 

82),  245. 
In  Adams,  re   (6  Ben.  56;  1  Fed.  Cas. 

82),  178. 
In  Adams,  re   (3  N.  B.  R.  561;  1  Fed. 

Cas.  83),  137. 
In  Addison,  re  (3  Hughes,  430;  1  Fed. 

Cas.  167),  45. 
In  Adler,  re    (2  Woods,  571;  1  Fed. 

Cas.  176),  211. 
In  Alden,  re   (16  N.  B.  R.  39;  1  Fed. 

Cas.  327  [1844]),  399. 


In  Alden,  re   (1  Fed.  Cas.  327  [1844]), 

243. 
In  Alexander,   re    (9  Ben.  99  1  Fed. 

Cas.  347),  118. 
In  Alexander,  re    (1  Low.  470;  1  Fed. 

Cas.  351),  248. 
In  Allen,  re    (13  Blatchf.  271;  1  Fed. 

Cas.  436),  35. 
In  Allen,  re    (17  N.  B.  R.  157;  1  Fed. 

Cas.  439),  118. 
In  Alsberg,   re    (16  N.  B.   R.  116;  1 

Fed.  Cas.  557),  46,  152. 
In  American  P.  G.,  etc.,  Ins.  Co.,  re 
(12  N.  B.  R.  56;  1  Fed.  Cas.  716), 
287. 
In  Anderson,  re  (23  Fed.  Rep.  482),  38, 

40,  49,  110,  164,  167,  176. 
In  Anderson,  re    (7  Biss.  233;  1  Fed. 

Cas.  829),  233. 
In  Anderson,   re     (2   Hughes,   378;   1 

Fed.  Cas.  8.31),  39,  99,  147. 
In  Angier,  re  (10  Am.  L.  Reg.  N.  S. 

190;  1  Fed.  Cas.  914),  99,  404. 
In  Antisdel,  re  (18  N.  B.   R.  289;  1 

Fed.  Cas.  1054),  129,  130,  136. 
In  Appold,  re    (7  Am.  Law  Reg.  624; 

1  Fed.  Cas.  1075),  310,  344. 
In  Archenbrown.  re    (8  N.  B.  B.  429; 

1  Fed.  Cas.  1084),  307. 
In  Archenbrown,  re   (11  N.  B.  R.  149; 

1  Fed.  Cas.  1084),  48,  129,  244. 
In  Arledge,  re   (1  N.  B.  R.  644;  1  Fed. 

Cas.  1127),  366. 
In  Armstrong,  re   (9  Ben.  212;  1  Fed. 

Cas.  1134),  359. 
In  Arnold,  re   (2  N.  B.  R.  160;  1  Fed. 

Cas.  1063),  241. 
In  Ash,  re    (17  N.  B.  R.  19;  2  Fed. 

Cas.  6),  116. 
In  Askew,  re   (3  N.  B.  R.  575;  2  Fed. 

Cas.  29),  90. 
In  Aspinwall,  re  (7  Ben.  433;  2  Fed. 

Cas.  64),  178. 
In  Aspinwall,  re  (11  Fed.  Rep.  156), 

273. 
In  Asten,  re   (8  Ben.  350;  2  Fed.  Cas. 

69),  97. 
In  Atkinson,  re    (7  N.  B.   R.  143;  2 

Fed.  Cas.  96),  46. 
In  Atlantic  M.  L.  I.  Co.,  re    (9  Ben. 

270;  2  Fed.  Cas.  168),  162,  246. 
In  Atlantic  M.  L.  I.  Co.,  re    (9  Ben. 

337;  2  Fed.  Cas.  169),  283. 
In  Aubrey,   re    (17  N.   B.   R.  287;  1 

Fed.  Cas.  315),  38. 
In  August,  re   (19  N.  B.  R.  161;  2  Fed. 

Cas.  208),  121. 
In  Austin,  re   (16  N.  B.  R.  518;  2  Fed. 
Cas.  23),  162. 


XVI 


Table  of  Cases  Cited. 


In  Babcock,  re  (3  Story,  393;  2  Fed. 

Cas.   289   [1844]),   215,   229,  237, 

289. 
In  Babcock,  re  (1  Woodb.  &  M.  26;  2 

Fed.  Cas.  292  [1845]),  214. 
In  Badenheim,  re  (15  N.  B.  R.  370;  2 

Fed.  Cas.  325),  335. 
In  Bailey,  re  (1  N.  Y.  I^pr.  Ohs.  16;  2 

Fed.  Cas.  358   [1842]),  141. 
In  Bailey,  re  (2  Woods,  222;  2  Fed. 

Cas.  362),  118,  225,  226,  294. 
In  Bailey,  re  (2  Ben.  437;  2  Fed.  Cas. 

392),  26. 
In  Baker,  re  (1  Hask.  593;  2  Fed.  Cas. 

433)    335. 
In  Baker,  re  "(14  N.  B.  R.  433;  2  Fed. 

Cas.  437),  339. 
In  Bakewell,   re   (4  N.   B.   B.   619;   2 

Fed.   Cas.  500),  229. 
In  Balch,  re  (3  McLean,  221;  2  Fed. 

Cas.  503  [1841]),  106. 
In  Baldwin,  re  (6  Ben.  196;  2  Fed. 

Cas.  507),  242. 
In  Baldwin,  re  (19  N.  B..  R.  52;  2  Fed. 

Cas.  508),  319. 
In  Balmer,  re  (3  Hughes,  637;  2  Fed. 

Cas.  560),  132. 
In  Bait.  Co.  D.  Ass'n,  re  (2  Hughes, 

250;2Fed.  Cas.  572),  148. 
In  Bank  of  Madison,  re  (5  Blss.  515;  2 

Fed.  Cas.  657),  316. 
In  Bank  of  North  Carolina,  re  (19  N. 

B.  B.  164;  2  Fed.  Cas.  668),  201. 
In  Banks,  re  (1  N.  Y.  Leg.  Obs.  274;  2 

Fed.  Cas.  755  [1843 J),  135,  146. 
In  Barman,   re   (14  N.   B.   E.   125;   2 

Fed.  Cas.  831),  325. 
In  Barnes,  re  (18  Fed.  Rep.  158),  283, 

304. 
In  Barnes,  re  (1  Low.  560;  2  Fed.  Cas. 

854),  228. 
In  Barnes,  re  (2  Fed.  Cas.  855),  304. 
In  Barnett,  re  (2  Fed.   Cas.  .S79i.  raid. 
In  Barrett,  re  (2  Hughes,  444;  2  Fed. 

Cas.  909),  207,  208. 
In   Barrow,   re   (1   N.   B.   R.  481;   2 

Fed.  Cas.  941),  402. 
In   Bashford,    re    (2    N.   B.    R.    72;    2 

Fed.  Cas.  10O4),  129,  153. 
In  Bass,  re  (3  Woods,  382;  2  Fed.  Cas. 

1004),  82. 
In  Batchelder,  re  (1  Low.  373;  2  Fed. 

Cas.  1012),  146,  268. 
In  Baxter,  re  (12  Fed.  Rep.  72),  234. 
In  Baxter,  re  (25  Fed.  Rep.  700),  239. 
In  Baxter,  re  (28  Fed.  Rep.  452).  .S13. 
In  Baxter,  re  (18  N.  B.  R.  62;  2  Fed. 

Cas.  1044),  289. 
In  Baxter,  re  (18  N.  B.  R.  497;  2  Fed. 

Cas.  1045),  289. 


In  Bayly,  re  (19  N.  B.  K.  73;  2  Fed. 

Cas.  1085),  123. 
In  Beadle,  re  (5  Saw.  351;  2  Fed.  Caa. 

1106),  334,  359. 
In  Beal,  re  (1  Low.  325;  2  Fed.  Caa. 

1107),  96,  137. 
In  Beal,  re  (9  Ben.  223;  2  Fed.  Caa. 

1119),  28. 
In  Bean,  re  (14  N.  B.  R.  182;  2  Fed. 

Cas.  1120),  176,  228.      ' 
In  Bear,  re  (5  Fed.  Rep.  63),  164,  234. 
In  Bear,  re  (7  Fed.  Rep.  583),  338. 
In  Bear,  re  (8  Fed.  Rep.  428),  349. 
In  Bear,  re  (11  N.  B.  B.  46;  2  Fed. 

Cas.  1166),  392. 
In  Beardsley,  re  (1  N.  B.  R.  304;  2 

Fed.  Cas.  1175),  131. 
In  Beardsley,  re  (1  N.  B.  R.  457;  2 

Fed.  Cas.  1176),  95. 
In  Beatty,  re  (3  Ben.  233;  3  Fed.  Caa. 

8),  141. 
In  Beck,  re  (31  Fed.  Rep.  554),  190. 
In  Beck,  re  (1  N.  B.  R.  588;  3  Fed. 

Cas.  316),  354. 
In  Beckerford,  re  (1  Dill.  45;  4  N.  B. 

R.  203;  3  Fed.  Cas.  26),  86. 
In  Beckett,  re  (2  Woods,  173;  3  Fed. 

Cas.  27),  121. 
In  Beede,  re  (19  N.  B.  R.  68;  3  Fed. 

Cas.  62),  83. 
In  Beers,  re  (5  N.  B.  B.  211;  3  Fed. 

Cas.  64),  289. 
In  Beisenthal.  re  (10  Ben.  42;  3  Fed. 

Cas.  75),  375. 
In  Beisenthal,  re  (14  Blatchf.  146;  3 

Fed.  Cas.  76),  363. 
In  Belcher,  re  (2  Ben.  468;  3  Fed.  Caa. 

79),  27. 
In  Belden,  re  (4  Ben.  225;  3  Fed.  Caa. 

79),  132. 
In  Belden,  re  (5  Ben.  476;  3  Fed.  Caa. 

80),  128. 
In  Belden,  re  (2  N.  B.  R.  42;  3  Fed. 

Cas.  82),  60. 
In  Belden,  re  (4  N.  B.  R.  194;  3  Fed. 

Cas.  82),  173. 
In  Belew,  re  (4  Ben.  135;  2  Fed.  Caa. 

559),  184,  341. 
In  Bellamy,   re   (1   Ben.   390;   3   Fed. 

Cas.  121;  1  Ben.  426;  3  Fed.  Cas. 

124;  1  Ben.  474;  3  Fed.  Cas.  124; 

1  Ben.  474;  3  Fed.  Cas.  126),  198. 
In  Bellis,  re  (4  Ben.  53;  3  Fed.  Caa. 

135),  145. 
In  Bellis,  re  (3  N.  B.  R.  270;  3  Fed. 

Cas.  135),  177. 
In  Bellows,  re  (3  Story,  428;  3  Fed. 

Cas.  138  [1844]),  40,  105. 
In  Bennett,   re   (8  Ben.  561:  3  Fed 

Cas.  205),  119. 


Table  of  Cases  Cited. 


xvu 


In  Bennett,  re  (2  Hughes,  156;  3  fed. 

Cas.  206),  31,  325. 
In  Bennett,  re  (2  Low.  400;  3  Fed. 

Cas.  209),  67. 
In  Bennett,  re  (2  N.  B.  R.  181;  3  Fed. 

Cas.  211),  93. 
In  Benson,  re  (8  Biss.  116;  3  Fed.  Cas. 

236),  396. 
In  Benson,  re  (16  N.  B.  R.  75;  3  B'od. 

Cas.  255),  77,  260. 
In  Bergeron,  re  (12  N.  B.  R.  385;  3 

.    Fed.  Cas.  266),  169. 
In  Bernla,  re  (5  Fed.  Rep.  723),  144, 

265. 
In  Berrian,  re  (6  Ben.  297;  3  Fed.  Cas. 

283),  78. 
In  Bersten,   re  (2  Ben.   244;   3  Fed. 

Cas.  282),  336. 
In  Betts,  re  (4  Dill.  93;  3  Fed.  Cas. 

314),  83. 
In  Bidwell,  re  (2  N.  B.  R.  229;  3  Fed. 

Cas.  388),  71. 
In  Bieler,  re  (7  N.  B.  R.  552;  3  Fed. 

Cas.  339),  170. 
In  Bigelow,  re  (2  Ben.  469;  3  Fed. 

Cas.  341),  345. 
In  Bigelow,  re  (3  Ben.  146;  3  Fed.  Cas. 

345),  78. 
In  Bigelow,  re   (3  Ben.  198;  3  Fed. 

Cas.  347),  287. 
In  Bill,  re  (2  N.  B.  R.  241;  3  Fed.  Cas. 

376),  360. 
In  Bingham  v.  Richmond,  re  (6  N.  B. 

R.  127;  3  Fed.  Cas.  405),  241. 
In  Bininger,  re  (7  Blatchf.  159;  3  Fed. 

Cas.  407),  41. 
In  Bininger,  re  (7  Blatchf.  165;  3  Fed. 

Cas.  410),   192. 
In  Bininger,  re  (7  Blatchf.  168;  8  Fed. 

Gas.  411),  41. 
In  Bininger,  re  (7  Blatchf.  262;  3  Fed. 

Cas.  412),  60,  161,.  167. 
In  Bins,  re  (4  Ben.  452;  3  Fed.  Cas. 

420),  339. 
In  Bjornstad,  re  (9  Biss.  13;  3  Fed. 

Cas.  489),  92,  94. 
In  Blabon  v.  Hunt,  re  (2  N.  .T.  L.  .T. 
179;  3  Fed.  Cas.  493),  59,  269,  333. 
In  Black,  re  (2  Ben.  171;  3  Fed.  Cas. 

500),  330. 
In  Black,  re  (2  Ben.  195;  3  Fed.  Cas. 

495),  59,  266. 
In  Black  v.  McClellan,  re  (12  N.  B.  R. 

481;  3  Fed.  Cas.  504),  294. 
In  Blackmore,  re  (11  Fed.  Rep.  412), 

123. 
In  Bland,  re  (2  Hughes,  334;  4  Fed. 

Cas.  17),  234. 
In  Blandin,  re  (1  Low.  543;  3  Fed. 
Cas.  669),  287. 

ii 


In  Bledsop,  re  (12  N.  B.  R.  402;  3  Fed. 

Cas.  686),  396. 
In  Bliss,  re  (1  Ben.  407;  3  Fed.  Cas. 

705),  208. 
In  Bloch,  re  (18  N.  B.  R.  328;  3  Fed. 

Cas.  715),  120. 
In  Block,  re  (18  N.  B.  R.  328;  3  Fed. 

Cas.  715),  117. 
In  Blodget,  re  (5  N.  B.  R.  472;  3  Fed. 

Cas.  716),  211. 
In  Blodgett,  re  (10  N.  B.  B.  145;  ,3 

I'-Pd.  Cas.  720),  91. 
In  Bloss,  re  (4  N.  B.  R.  147;  3  Fed. 

Cas.  733),  234,  339. 
In  Blue  Ridge  R.  Co.,  re  (2  Hughes, 

225;  3  Fed.  Cas.  750),  351. 
In  Blumenthal,  re  (18  N.  B.  R.  555, 

575;  3  Fed.  Cas.  757,  758),  145. 
In  Blumer,  re  n2  Fod.  Rep.  4&9).  80. 
In  Bogert,  re  (2  N.  B.  R.  585;  3  Fed. 

Cas.  803),  202.    ^ 
In  Bogert,  re  (3  N.  B.  B.  651;  3  Fed. 

Cas.  803),  209. 
In  Bolton,  re  (2  Ben.  189;  3  Fed.  Cas. 

S20),  233. 
In  Bonesteel,  re  (2  N.  B.  R.  330;  3 

Fed.  Cas.  849),  173. 
In   Bonesteel,   re    (7   Blatchf.   175;   3 

Fed.  Cas.  849),  366. 
In  Bonnet,  re  (1  N.  Y.  Leg.  Obs.  310; 

3  Fed.  Cas.  854  [1843]),  60. 
In  Bousfield  &  Poole  M.  Co.,  re  (16  N. 

B.  R.  489;  3  Fed.  Cas.  1013),  239, 

274. 
In  Bousfield  &  Poole  M.  Co.,  re  (17  N. 

B.  B.  153;  3  Fed.  Cas.  1016),  43, 

106,  301. 
In  Book,  re  (3  McLean,  307;  3  Fed. 

Cas.  867  [1843]),  63,  156,  159. 
In  Boothroyd,  re  (14  N.  B.  R.  232;  3 

Fed.  Cas.  881),  218. 
In  Boothroyd,  re  (14  N.  B.  R.  223;  3 

Fed.  Cas.  892),  83,  91. 
In  Boothroyd,  re  (15  N.  B.  R.  364;  3 

Fed.  Cas.  895),  327. 
In  Borst,  re  (2  N.  B.  R.  171;  3  Fed. 

Cas.  913),  44. 
In   Bo.ston   H.    &   E.   R.    Co.,    re    (9 

Blatchf.  101,  409;  3  Fed.  Cas.  951), 

27. 
In  Boston  H.  &  E.  R.  Co..  re  (?,  N.  B. 

R.  232;  3  Fed.  Cas.  956),  163. 
In  Boston   Iron  Works,   re   (29  Fed. 

Rep.  783),  285. 
In  Boutelle,  re  (2  N.  B.  B.  129;  3  Fed. 

Cas.  1018),  128. 
In  Bouton,  re  (5  Saw.  427;  3  Fed.  Cas. 

1019),  248,  252. 
In  Bowie,  re  (1  N.  B.  R.  628;  3  Fed. 
Cas.  1067),  33,  48,  218,  399. 


XTIU 


Table  of  Cases  Cited. 


In  Bowie,  re  (Fed.  Cas.  No.  1728),  40, 

411,  412. 
In  Bowler,  re  (2  Hughes,  319;  3  Fed. 

Cas.  1072),  352. 
In  Bowne,  re  (12  N.  B.  R.  529;  3  Fed. 

Cas.  1086),  312. 
In  Boyd,  re  (2  Hughes,  349;  3  Fed. 

Cas.  1089),  389. 
In  Boynton,  re  (10  Fed.  Rep.  277),  63, 

139. 
In  Bradley,  re  (2  Biss.  515;  3  Fed. 

Cas.  1135),  289. 
In  Brand,  re  (2  Hughes,  334;  4  Fed. 

Cas.  17),  309. 
In  Breck,  re  (8  Ben.  93;  4- Fed.  Cas. 

43),  311,  392. 
In  Breck,  re  (13  N.  B.  R.  216;  4  Fed. 

Cas.  44),  205. 
In  Brent,  re  (2  Dill.  129;  4  Fed.  Cas. 

59),  141. 
In  Brick,  re  (4  Fed.  Rep.  804),  95. 
In  Bridgman,  re  (1  N.  B.  R.  312;  4 

Fed.  Cas.  Ill),  232. 
In  Bridgman,  re  (2  N.  B.  B.  252;  4 

Fed.    Cas.    112),   45. 
In  Bright,  re  (9  Fed.  Rep.  491),  138. 
In  Brightman,  re  (18  N.  B.  B.  566;  ^ 

Fed.  Cas.  138),  317. 
In  Brinker,  re  (19  N.  B.  R.  195;  4  Fed. 

Cas.  143),  314. 
In  Brinkman,  re  (6  N.  B.   B.  541;  4 

Fed.  Cas.  144),  360. 
In  Brinkman,  re  (7  N.  B.  R.  421;  4 

Fed.  Cas.  145),  108. 
In  Brisco,  re  (2  N.  B.  R.  226;  4  Fed. 

Cas.  152),  226. 
In  Brockway,  re  (12  Fed.  Rep.  69), 

134,  143. 
In  Brockway,  re  (23  Fed.   Rep.  583), 

134. 
In  Brodhead,  re  (3  Ben.  106;  4  Fed. 

Cas.  201),  136. 
In  Broich,  re  (7  Biss.  303;  4  Fed.  Cas. 

205),  226,  232,  234,  271. 
In  Brooks,  re  (2  N.  B.  R.  466;  4  Fed. 

Cas.  246),  347. 
In  Broome,  re  (3  Ben.  488;  4  Fed.  Cas. 

317),  363. 
In  Broome,  re  (3  N.  B.  B.  113;  4  Fed. 

Cas.  317),  363. 
In  Brown,  re  (4  Ben.  142;  4  Fed.  Cas. 

327),  316. 
In  Brown,  re  (4  Fed.  Cas.  327),  344. 
In  Brown,  re  (5  Ben.  1;  4  Fed.  Cas. 

328),  293. 
In  Brown,  re  (5  Law  Rep.  121;  4  Fed. 

Cas.  332  [1842]),  95. 
In  Brown,  re  (5  Law  Rep.  258;  4  Fed. 

Cas.  333  [1842]),  153. 


n  Brown,  re  (3  N.  B.  R.  250;  4  Fed. 

Cas.  334),  83. 
n  Brown,  re  (19  N.  B.  B.  270;  4  Fed. 

Cas.  336),  35. 
n  Brown,  re  (19  N.  B.  R.  312;  4  Fed. 

Cas.  338),  149. 
n  Brown,  re  (1  N.  Y.  Leg.  Obs.  69;  4 

Fed.  Cas.  339),  347. 
n  Bruce,  re  (6  Ben.  515;  4  Fed.  Cas. 

466),  243. 
n  Bruce,  re  (9  Ben.  236;  4  Fed.  Cas. 

467),  324. 
n  Brunquest,  re  (7  Biss.  208;  4  Fed. 

Cas.  482),  348. 
n  Bryce,  re  (19  N.  B.  R.  287;  4  Fed. 

Cas.  520),  im 
n  Buchanan,  re  (10  N.  B.  R.  97;  4 

Fed.  Cas.  527),  252,  254. 
n  Buchstein,  re  (9  Ben.  215;  4  Fed. 

Cas.  540),  148. 
n  Buckhause,  re  (2  Low.  331;  4  Fed. 

Cas.  560),  229. 
n  Bucyrus  M.  Co.,  re  (5  N.  B.  R.  303; 

4  Fed.  Cas.  584),  78. 
n  Bugbie,  re  (9  N.  B.  R.  258;  4  Fed. 

Cas.  609),  234. 
n  Burchell,  re  (4  Fed.  Rep.  406),  150. 
n  Burgess,  re  (3  N.  B.  R.  196;  4  Fed. 

Cas.  725),  141,  145. 
n  Burk,  re  (Deady,  425;  4  Fed.  Cas. 

729),  128,  132. 
n  Burt,  re  (27  Fed.  Rep.  548),  217. 
n  Burton,  re  (29  Fed.  Rep.  637),  353. 
n  Burton,  re  (9  Ben.  324;  4  Fed.  Cas. 

863),  26,  29. 
n  Buse,  re  (3  N.  B.  B.  215;  4  Fed. 

Cas.  879),  351. 
n  Bush,  re  (6  N.  B.  R.  179;  4  Fed. 

Cas.  879),  163,  169. 
n  Butler,  re  (6  N.  B.  B.  501;  4  Fed. 

Cas.  894),  309,  343. 
n  Butterfield,  re  (5  Biss.  120;  4  Fed. 

Cas.  919),  131. 
n  Butterfield,  re  (14  N.  B.  R.  195;  4 

Fed.  Cas.  919),  225. 
n  Byrne,  re  (1  N.  B.  R.  464;  4  Fed. 

Cas.  951),  80,  281. 
n  Cadwell,  re  (17  Fed.  Rep.  693),  238. 
n  Calendar,  re  (5  Law  Rep.  129;  4 

Fed.  Cas.  1045),  34. 
n  California  P.  R.   Co.,  re  (3  Saw. 

1^40;  4  Fed.  Cas.  10(J1),  166,  252. 
n  Camden  P.  M.  Co.,  re  (3  N.  B.  B. 

59;  4  Fed.  Cas.  1127),  165. 
n  Campbell,  re  (17  N.  B.  R.  4-  4  Fed 

Cas.  1157),  393. 
n  Canady,  re  (2  Biss.  75;  5  Fed.  Cas. 

2),  127. 


Table  of  Cases  Cited. 


XIX 


In  Canfield,  re  (5  Law  Rep.  415;  5  Fed. 

Cas.  8  [1843]),  249. 
In  Cantrell,   re   (6  Ben.  482;   5   Fed. 

Cas.  31),  328. 
In  Carow,  re  (4  N.  B.  R.  543;  5  Fed. 

Cas.  101),  396. 
In  Carrier,  re  (39  Fed.  Rep.  193),  217, 

307. 
In  Carrier,  re  (47  Fed.  Rep.  438),  132. 
In  Carrier,  re  (48  Fed.  Rep.  161),  165. 
In  Carrier,  re  (51  Fed.  Rep.  900),  232. 
In  Carson,  re  (5  Ben.  277;  5  Fed.  Cas. 

172),  206. 
In  Casey,  re  (10  Blatclif.  376;  5  Fed. 

Cas.  279)    49. 
In  Cavan,  re'(19  N.  B.  R.  303;  5  Fed. 

Cas.  318),  120. 
In  Cease,  re  (5  Law  Rep.  408;  5  Fed. 

Cas.  388  [1842]),  249. 
In  Chadwicls,  re  (5  Law  Rep.  457;  5 

Fed.  Cas.  398  [1842]),  140. 
In  Chamberlin,  re  (9  Ben.  149;  5  Fed. 

Cas.  422),  309. 
In  Chandler,  re  (9  N.  B.  R.  514;  5  Fed. 

Cas.  443),  292. 
In  Chase,  re  (22  Vt.  649;  5  Fed.  Cas. 

517  [1842]),  137. 
In  Cheney,  re  (19  N.  B.  R.  16;  5  Fed. 

Cas.  541),  201. 
In  Chisholm,  re  (4  Fed.  Rep.  526),  219. 
In  Churchman,  re  (5  Fed.  Rep.  181), 

113. 
In  Citizens'  S.  Bank,  re  (9  N.  B.  R. 

152;  5  Fed.  Cas.  738),  .SI. 
In  Clairmont,  re  (1  Low.  230;  5  Fed. 

Cas.  810),  208. 
In  Clap,  re  (2  Low.  168;  5  Fed.  Cas. 

814),  72. 
In  Clapp,  re  (2  Low.  468;  5  Fed.  Cas. 

819),  121. 
In  Clark,  re  (4  Ben.  88;  5  Fed.  Cas. 

835),  75. 
In  Clark,  re  (2  Biss.  73;  5  Fed.  Cas. 

840),  135. 
In  Clark,  re  (9  Blatehf.  372;  5  Fed. 

Cas.  841),  44,  189. 
In  Clark,  re  (9  Blatchf.  379;  5  Fed. 

Cas.  844),  43. 
In  Clark,  re  (5  N.  B.  R.  255;  5  Fed. 

Cas.  850),  2.34. 
In  Clark,  re  (17  N.  B.  R.  554;  5  Fed. 

Cas.  855),  382. 
In  Clark,  re  (19  N.  B.  R.  301;  5  Fed. 

Cas.  855),  133. 
In  Clarke,  re  (2  Hughes,  405;  5  Fed. 

Cas.  939),  2.38,  277. 
In  Clarke,  re  (2  N.  B.  R.  110;  5  Fed. 

Cas.  942),  129. 
In  Cleveland  Ins.  Co.,  re  (22  Fed.  Rep. 

200),  301. 


In  Clews,  re  (19  N.  B.  R.  109;  5  Fed. 

Cas.  1047),  152. 
In  Clongh,  re  (2  N.  B.  R.  151;  5  Fed. 

Cas.  1086),  230. 
In  Coan  &  Ten  Broeke  M.  Co.,  re  (6 

Biss.  315;  5  Fed.  Cas.  1112),  316. 
In  Cobb,  re  (1  N.  B.  R.  414;  5  Fed. 

Cas.  1123),  88. 
In  Cogbill,  re  (2  Hughes,  313;  6  Fed, 

Cas.  1),  334. 
In  Cogswell,  re  (1  Ben.  388;  6  Fed. 

Cas.  11),  210. 
In  Cohaus,  re  (6  Fed.  Cas.  12  [1842]), 

130. 
In  Cohen,  re  (3  Dill.  295;  6  Fed.  Cas. 

13),  90. 
In  Cohen,  re  (19  N.  B.  R.  133:  6  Fed. 

Cas.  14),  46. 
In  Cohn,  re  (6  N.  B.  R.  379;  6  Fed. 

Cas.  21),  307. 
In  Colcord,  re  (2  Hask.  455;  6  Fed. 

Cas.  33),  145. 
In  Collateral  L.  &  S.  Bank,  re  (5  Saw. 

331;  6  Fed.  Cas.  100),  250. 
In  Collier,  re  (12  N.  B.  B.  266;  6  Fed. 

Cas.  107),  73. 
In  Collins,  re  (8  Ben.  328;  6  Fed.  Cas. 

112),  304. 
In  Collins,  re  (8  Ben.  59;  6  Fed.  Cas. 

112),  324. 
In  Collins,  re  (3  Biss.  415;  6  Fed.  Cas. 

113),  63. 
In  Collins,  re  (12  Blatchf.  548;  6  Fed. 

Cas.  114),  362. 
In  Collins,  re  (1  N.  B.  R.  551;  6  Fed. 

Cas.  116),  174. 
In  Columbian  Metal  "Works,  re  (3  N. 

B.  R.  75;  6  Fed.  Cas.  177),  403. 
In    Commercial    Bulletin    Co.,    re    (2 

Woods,  220;  6  Fed.  Cas.  220).  344. 
In  Comstock,  re  (5  Law  Rep.  163;  6 

Fed.  Cas.  231  [1842]),  46,  293. 
In  Comstock,  re  (5  N.  B.  B.  191;  6 

Fed.  Cas.  239),  313. 
In  Comstock,  re  (3  Saw.  128;  6  Fed. 

Cas.  241),  167. 
In  Conant,  re  (5  Blatchf.  54;  6  E'ed. 

Cas.  257),  114. 
In  Condict,  re  (19  N.  B.  R.  142;  6  Fed. 

fjiR.  267),  im. 
In  Connell,  re  (3  N.  B.  R.  443;  6  Fed, 

Cas.  304),  97. 
In  Conner,  re  (1  Low.  532;  6  Fed.  Cas. 

312),  141.  261. 
In  Cook,  re  (3  Biss.  122;  6  Fed.  Cas. 

378),  262. 
In  Cook,  re  (17  Fed.  Rep.  328),  283. 
In  Cook,   re   f17  Fpd.   T!.op.   .•'•28),   284. 
In  Cook,  re  (3  Biss.  116;  6  Fed.  Caa 

381),  346. 


XX 


Table  of  Cases  Cited. 


In  Cook,  re  (2  Story,  376;  6  Fed.  Cas. 

383  [1843]),  330. 
In  Cooke,  re  (10  N.  B.  K.  146;  6  Fed. 

Cas.  418),  172. 
In  Cooke,  re  (12  N.  B.  R.  30;  6  Fed. 

Cas.  427),  181. 
In  Cooke,  re  (6  Fed.  Cas.  431),  108. 
In  Cooper,  re  (16  N.  B.  R.  178;  6  Fed. 

Cas.  469),  324. 
In   Corbett,   re   (5   Saw.   206;   6   Fed. 

Cas.  528),  77,  91. 
In  Corn  Exchange  Bank," re  (7  Biss. 

400;  6  Fed.  Cas.  576),  309. 
In  Cornwall,  re  (9  Blatchf.  114;  6  Fed. 

Cas.  586),  249,  352. 
In  Cornwall,  re  (9  Blatchf.  114;  6  Fed. 

Cas.  586),  170. 
In  Cornwall,   re   (4  N.   B.  R.  400;  6 

Fed.  Cas.  595),  249. 
In  Corwin,  re  (1  Fed.  Rep.  847)^  134. 
In  Cotton,  re  (2  N.  T.  Leg.  Obs.  370; 

6  Fed.   Cas.  617   [18431).   292. 
In  Coulter,  re  (2  Saw.  42;  6  Fed.  Cas., 

637),  346. 
In  Court,  re  (17  N.  B.  R.  555;  6  Fed. 
'      Cas.  648),  169. 
In  Cowles,  re  (1  N.  B.  R.  280;  6  Fed. 

Cas.  672),  58. 
In  Cozart,  re  (3  N.  B.  R.  508;  6  Fed. 

Cas.  696),  350. 
In  Craft,  re  (2  Ben.  214;  6  Fed.  Cas. 

698),  61,  161. 
In  Craft,  re  (6  Blatchf.  177;  6  Fed. 

Cas.  701),  353. 
In  Craig,  re  (3  N.  B.  R.  100;  6  Fed. 

Cas.  711),  172. 
In  Craig,  re  (4  N.  B.  R.  50;  6  Fed. 

Cas.  712),  177. 
In  Cram,  re  (1  Hask.  89;  6  Fed.  Cas. 

738),   237. 
In  Cramer,  re  (13  N.  B.  R.  225;  6  Fed. 

Cas.  742),  241. 
In  Crawford,  re  (3  N.  B.  R.  698;  6 

Fed.  Cas.  766),  298. 
In  Crawford,  re  (5  N.  B.  R.  301;  6 

Fed.  Cas.  771),  292. 
In   Cretiew,   re   (5   N.    B.    R.   423;   6 

Fed.  Cas.  810),  141. 
In  Crockett,   re  (2  Ben.  514;  6  Fed. 

Cas.  836),  70. 
In  Croft,  re  (8  Biss.  188;  6  Fed.  Cas. 

838),  92,  137. 
In  Croney,  re  (8  Ben.  64;  6  Fed.  Cas. 

863),  295. 
In  Cross,  re  (2  Dill.  320;  6  Fed.  Cas. 

884),  86. 
In  Crossette,  re  (17  N.  B.  R.  208;  6 

Fed.  Cas.  894),  251. 
In  Croughwell,  re  (9  Ben.  360;  6  Fed. 

Oas.  902),  376. 


In  Cunningham,  re  (19  N.  B.  R.  276; 

6  Fed.  Cas.  958),  219. 
In  Curtland,  re  (10  Blatchf.  515;  14 

Fed.  Cas.  688),  402. 
In  Cushman,   re  (7  Ben.  482;  b  Fed. 

Cas.  1066),  97. 
In  Daggett,  re  (8  N.  B.  R.  287,  433;  6 

Fed.  Cas.  1107,  1108),  43. 
In  Dakin.  re  (19  N.  B.  R.  181;  6  Fed. 

Cas.  1114),  328. 
In  Danforth,  re  (6  Fed.   Cas.  1150), 

180. 
In  Daniels,  re  (6  Biss.  405;  6  Fed.  Cas. 

1167),  292. 
In  Darby,  re  (4  N.  B.  R.  309;  6  Fed. 

Cas.  1177),  219. 
In  Davidson,   re   (4  Ben.  10;  7  Fed. 

Cas.  27),  357. 
In  Davis,  re  (1  N.  B.  R.  120;  7  Fed. 

Cas.  49),  225. 
In  Davis,  re  (1  Hask.  232;  7  Fed.  Cas. 

52),  305,  340. 
In  Davis,  re  (2  N.  B.  R.  391;  7  Fed. 

Cas.  56),  233. 
In  Davis,  re  (1  Saw.  260;  7  Fed.  Cas. 

58),  106. 
In  Day,  re  (7  Fed.  Cas.  217),  133. 
In  Dean,  re  (2  N.  B.   R.  89;  7  Fed. 

Cas.  291),  364. 
In  Dean,  re  (3  N.  B.  R.  768;  7  Fed. 

Cas.  293),  350. 
In  Decker,  re  (8  Ben.  81;  7  Fed.  Cas. 

324),  297. 
In  De  Forest,  re  (9  N.  B.  R.  278;  T 

Fed.  Cas.  363),  164,  171. 
In  Dell,  re  (6  Saw.  344;  7  Fed.  Cas. 

415),  76. 
In  De  Metz,  re  (7  Fed.  Cas.  451),  243. 
In  Derby,  re  (6  Ben.  232;  7  Fed.  Cas. 

513),  61,  63. 
In  Detert,  re  (11  N.  B.  R.  293;  7  Fed. 

Cas.  545),  83. 
In  Devoe,  re  (1  Low.  251;  7  Fed.  Cas. 

565),  43. 
In  Devore.  re  (16  N.  B.  R.  56;  7  Fed. 

Cas.  570),  43,  301. 
In  Dewey,  re  (1  Low.  490;  7  Fed.  Cas. 

572),  211. 
In  Dey,  re  (3  Ben.  450;  7  Fed.  Cas. 

62.^).   346.  mo. 
In  Dey,  re  (9  Blatchf.  285;  7  Fed.  Cas. 

627).  346. 
In  Dibblee,  re  (3  Ben.  283;  7  Fed.  Cas. 

651),  53,  60,  167,  256,  264. 
In  Dibblee.  re  (3  Ben.  354;  7  Fed.  Cas. 

657),  195,  218. 
In  Dickinson,  re  (18  N.  B.  R.  514-  7 

Fed.  Cas.  675),  225. 
In  Digffles,  re  (8  Ben.  36;  7  Fed.  Cas. 


Table  of  Cases  Cited. 


In  Dillard,  re  (2  Hughes,  191;  7  Fed. 

Cas.  703),  404,  406. 
In  Dobbins,  re  (18  N.  B.  R.  268;  7 

Fed.  Cas.  781),  178. 
In  Dodge,  re  (7  Fed.  Cas.  785  [1842]), 

97,  158. 
In  Dodge,  re  (4  Dill.  532;  7  Fed.  Cas. 

788),  309. 
In  Doe,  re  (2  N.  B.  R.  308;  7  Fed. 

Cas.  802),  208. 
In  Dole,  re  (11  Blatchf.  499;  7  Fed. 

Cas.  828,  832),  176. 
In  Donaldson,  re  (2  Dill.  546;  7  Fed. 

Cas.  882),  127. 
In  Donnelly,  re  (5  Fed.  Rep.  783),  160, 

168. 
In  Donoghue,  re  (2  Hask.  17;  7  Fed. 

Cas.  899),  179. 
In  Doody,  re  (2  N.  B.  R.  201;  7  Fed. 

Cas.  906),  129. 
In  Doran,  re  (5  Cent.  L.  J.  260;  7  Fed. 

Cas.  915),  350. 
In  Doty,  re  (16  N.  B.  R.  202;  7  Fed. 

Cas.  957),  299. 
In  Douglass,  re  (11  Fed.  Rep.  403). 

149. 
In  Downing,  re  (1  Dill.  33;  7  Fed.  Cas. 

1005),  78,  80. 
In  Drake,  rp  (14  N.  B.  R.  150;  7  Fed. 

Cas.  1047),  315. 
In  Dresser,  re  (3  N.  B.  R.  557;  7  Fed. 

Cas.  1069),  99. 
In  Drisco,  re  (14  N.  B.  R.  541;  2  Low. 

430;  7  Fed.  Cas.  1092^  1104),  147, 

248. 
In  Drummond,  re  (1  N.  B.  B.  231;  7 

Fed.  Cas.  1108),  54. 
In  Drummond,  re  (4  Biss.  149;  7  Fed. 

Cas.  1110),  2.39,  207. 
In  Duerson,  re  (13  N.   B.  R.  183;  7 

Fed.  Cas.  1166),  86,  90. 
In  Duff,  re  (4  Fed.  Rep.  519),  330. 
In  Dumahaut,  re  (15  Blatchf.   20;  7 

Fed.  Cas.  1177),  117. 
In  Dumahaut,  re  (19  N.  B.  R.  394;  7 

Fed.  Cas.  1181),  307. 
In  Dumont,  re  (7  Fed.  Cas.  1184),  367. 
In  Duncan,  re  (8  Ben.  365;  8  Fed.  Cas. 

1),  166,  169,  251,  363. 
In  Duncan,  re  (8  Ben.  541;  8  Fed.  Cas. 

8),  180. 
In  Duncan,  re  (18  N.  B.  B.  42;  8  Fed. 

Cas.  9),  133. 
In  Dunham,  re  (2  Ben.  488;  8  Fed. 

Cas.  33),  55,  159,  182. 
In  Dunham,  re  (1  Hask.  495;  8  Fed. 

Cas.  35),  77. 
In  Dunham,  re  (27  Leg.  Int.  404;  8 

Fed.  Cas.  35),  310,  343. 


In  Dunkerson,  re  (4  Biss.  227;  8  Fed. 
I        Cas.  48),  345. 

In  Dunkerson,  re  (4  Biss.  253;  8  Fed. 
I         Cas.  51),  232. 
In  Dunkerson,  re  (4  Biss.  277;  8  Fed. 

Cas.  54),  76. 
In  Dunkerson,  re  (4  Biss.  323;  8  Fed. 
I         Cas.  55),  77. 
In  Dunkle,  re  (7  N.  B.  R.  72;  8  Fed.. 

Cas.  56),  355. 
lu  Dunn,  re  (53  Fed.  Rep.  341),  125. 
In  Dunn,  re  (2  Hughes,  169;  8  Fed. 

Cas.  93),  40,  338. 
In  Dunn,  re  (9  N.  B.  B.  487;  8  Fad. 

Cas.  96),  181. 
In  Dupee,  re  (2  Low.  18;  8  Fed.  Cas. 

108),  133. 
In  Duryea,  re  (17  N.  B.  R.  495;  8  Fed. 

Cas.  131),  40.  48. 
In  Duryea,  re  (7  N.  B.  R.  495;  8  Fed. 

Cas.  131),  48. 
In  Dyke,  re  (9  N.  B.  B.  430;  8  Fed. 

Cas.  214),  343. 
In  Earle,  re  (3  N.  B.  R.  304;  8  Fed. 

Cas.  251),  179. 
In  Eckenroth,   re   (8  Fed.  Cas.   286), 

263,  344. 
In   Edward,   re   (2   N.   B.   R.   349;   S 

Fed.  Cas.  343),  93. 
In  Bidom,  re  (3  N.  B.  B.  106;  8  Fed. 

Cas.  385),  130. 
In  Ekings,  re  (6  Fed.  Rep.  170),  137. 
In  Elder,  re  (1  Saw.  73;  8  Fed.  Cas. 

401),  231. 
In  Eldred,  re  (3  N.  B.  B.  256;  8  Fed. 

Cas.  407),  389. 
In  Eldridge,  re  (2  Biss.  362;  8  Fed. 

Cas.  412),  327,  401. 
In  Eldridge,  re  (2  Hughes,  2^6;  8  Fed. 

Cas.  414),  298,  300. 
In  Ellerhorst,  re  (2  Saw.  219;  8  Fed. 

Cas.  520),  243. 
In  Ellerhorst,  re  (5  N.  B.  R.  144;  8- 

Fed.  Cas.  522),  290. 
In  Elliott,  re  (2  N.  B.  B.  110;  8  Fed. 

Cas.  540),  129,  140. 
In  Ellis,  re  (5  Ben.  421;  8  Fed.  Cas. 

548),  319. 
In  Ellis,  re  (1  N.  B.  R.  55»;  8  Fed. 

Cas.  549),  88. 
In  Ely,  re  (5  Law  Rep.  323;  8  Fed. 

Cas.  598  [1843]),  129. 
In  Ely,  re  (1  N.  Y.  Leg.  Obs.  343;  S 

Fed.  Cas.  599),  271. 
In  Emery  &  Leeds,  re  (1  Fed.  Cas.  78(i 

[1843]),  270. 
In  Emison,  re  (2  N.  B.  R.  505;  8  Fed. 

Cas.  666),  231. 


XXll 


Table  of  Cases  Cited. 


In  English,  re  (6  Fed.  Rep.  276),  112. 
In  Erie  R.   M.   Oo.,  re   (1  Fed.  Kep. 

585),  316. 
In  Erwin,  re  (3  N.  B.  R.  580;  8  Fed. 

Cas.  779),  316. 
In  Ess,  re  (3  Biss.  301;  8  Fed.  Cas. 

785),  70. 
In  Estes,  re  (3  Fed.  Rep.  134),  79,  331. 
In  Estes,  re  (5  Fed.  Rep.  60),  386. 
In  Ettinger,  re  (18  N.  B.   R.  222;  8 

Fed.  Cas.  809),  385. 
In  Eureka  Mfg.  Co.,  re  (1  Low.  500; 

8  Fed.  Cas.  832),  291. 
In  Evans,  re  (1  Low.  525;  8  Fed.  Cas. 

833),  105. 
In  Evans,  re  (3  N.  B.  R.  261;  8  Fed. 

Cas.  835),  328. 
In  Everett,  re  (9  N.  B.  R.  90;  8  Fed. 

Cas.  906),  84. 
In  Ewing,  re  (16  Fed.  Rep.  753),  403. 
In   Falkner,   re   (16   N.   B.    R.   503;   8 

Fed.   Cas.   97.3),   207. 
In  Fallon,  re  (2  N.  B.  R.  277;  8  Fed. 

Cas.  977),  248. 
In  Farish,  re  (2  N.  B.  R.  168;  8  Fed. 

Cas.  1015),  87. 
In  Farmer,  re  (18  N.  B.  R.  207;  8  Fed. 

Cas.  1019),  178. 
In  Farns worth,  re  (5  Biss.  223;  8  Fed. 

Cas.  1056),  345. 
In  Farnum,  re  (6  Law  Rep.  21;  8  Fed. 

Cas.  1057  [1843]),  76. 
In  Farrell,  re  (5  N.  B.  R.  125;  8  Fed. 

Cas.  1078),  127. 
In  Fay,  re  (3  N.  B.   R.  660;  8  Fed. 

Cas.  1111),  179. 
In  Feely,  re  (3  N.  B.  R.  66;  8  Fed. 

Cas.  1123),  93. 
In   Feeny,   re   (1   Hask.   304;   8  Fed. 

Cas.  1124),  44. 
In  Feinberg,  re   (3  Ben.  162;  8  Fed. 

Cas.  1126),  177. 
Tn  F»ndlov.  ro  (10  N.  B.  R.  250;  8  Fed. 

Cas.  1137), 
Tn  Ferguson,  re  (2  Hughes,  286;  8  Fed. 

Cas.  1149),  105. 
In  Fprris,  re  (6  Ben.  473;  8  Fed.  Cas. 

1164),  167. 
Tn  Fetherston,  re  (5  Chi.  Leg.  News, 

193;  8  Fed.  Cas.  1174),  88. 
Tn  Findlay,  re  (5  Biss.  480;  9  Fed.  Cas. 

55)    159. 
In  Finn,  re  (8  N.  B.  R.  525;  9  Fed. 

Cas.  72),  137. 
In  Firemen's  Ins.  Co.,  re  (3  Biss.  462; 

9  Fed.  Cas.  72),  302. 
Tn  Flannigan,  re  (5  Saw.  312;  9  Fed. 

Cas.  239),  63. 
In  Foot,  re  (8  Ben.  228;  9  Fed.  Cas. 
355),  320. 


In  Foot,  re  (11  Blatehf.  5.30;  9  Fed. 

Cas.  357),  259. 
In  Forbes,  re  (5  Biss.  510;  9  Fed.  Cas. 

394),  327,  328,  377. 
In  Ford,  re  (18  N.  B.  R.  426;  9  Fed. 

Cas.  425),  195. 
In  Forsyth,  re  (4  Fed.  Rep.  629),  147. 
In  Forsyth,  re  (7  N.  B.  R.  174;  9  Fed. 

Oas.  465),  275,  280,  298. 
In  Fortune,   re  (1  Low.  306;  9  Fed. 

Cas.  500),  306. 
In  Fortune,  re  (1  Low.  554;  12  Fed. 

Cas.  584),  294,  311. 
In  Foster,  re  (2  N.  B.  R.  232;  9  Fed. 

Cas.  520),  137. 
In  Foster,  re  (3  Ben.  386;  9  Fed.  Cas. 

521),  26. 
In  Foster,  re  (6  Ben.  268;  9  Fed.  Cas. 

523),  302. 
In  Foster,  re  (18  N.  B.  R.  64;  9  Fed. 

('as.    524),    54. 
In  Fowler,  re  (8  Ben.  421;  9  Fed.  Cas. 

613),  311. 
In  Fowler,   re   (1   Low.   161;   9  Fed. 

Cas.  614),  62,  70,  162,  165. 
In  Fowler,  re  (2  Low.  122;  9  Fed.  Cas. 

615),  126,  133,  148. 
In  Fowler,  re  (1  N.  B.  R.  677;  18  Fed. 

Cas.  714  [1867]),  242. 
In  Fox,  re  (8  Chi.  I/eg.  News,  313;  9 

Fell.   C;is.  02.'?),  I'.t4. 
In  Fove,  re  (2  Low.  399;  9  Fed.  Cas. 

649),  207,  225,  306. 
In  Franklin,  re  (8  Ben.  233;  9  Fed. 

Cas.  709),  167. 
In  Frantzen,  re   (20  Fed.   Rep.  785), 

273. 
In  Frazier,  re  (2  Hughes,  293;  9  Fed. 

Cas.  735),  45. 
In  Fredenberg,  re  (2  Ben.  133;  9  Fed. 

Cas.  740),  163. 
In  Freear,  re  (2  Ben.  467;  9  Fed.  Cas. 

738),  288. 
In  Freeman,  re  (4  Ben.   245;  9  Fed. 

Cas.  750),  96,  131. 
In  Freudenfels,  re  (9  Fed.  Cas.  810), 

26. 
In  Frey,  re  (9  Fed.  Rep.  376),  143. 
In  Friedberg,  re  (19  N.  B.  R.  302;  9 

Fed.  Cas.  815),  145. 
In  Friedlob,  re  (19  N.  B.  R.  122;  9 

Fed.  Cas.  817),  245. 
In  Friend,  re  (3  Woods,  383;  7  Fed. 

Cas.  821),  92. 
In  Frisbee,  re  (4  Law  Rep.  483;  9  Fed. 

Cas.  959),  97. 
In  Frisbie,  re  (13  N.  B.  R.  349;  9  Fed. 

Cas.  961),  173. 
In  Frizelle,  re  (5  N.  B.  R.  122;  9  Fed. 

Cas.  965),  238. 


Table  op  Cases  Cited. 


xxui 


In  Frost,  re  (6  Biss.  213;  9  Fed.  Oas. 

965),  251. 
In  Frost,  re  (3  N.  B.  R.  73G;  9  Fed. 

Cas.  967),  289. 
In  Fuller,  re  (1  Saw.  243;  9  Fed.  Cas. 

978),  45,  354. 
In  Funkenstein,  re  (1  Pac.  Law  Eep. 

11;  9  Fed.  Cas.  1004),  209. 
In  Funkenstein,  re  (3  Saw.  605;  9  Fed. 

Cas.  1005),  251. 
In  Furbish,  re  (2  Hask.  120;  9  Fed. 

Cas.  1007),  195. 
In  Galny,  re  (2  N.  B.  E.  525;  9  Fed. 

Cas.  1065),  90. 
In  Gallagher,   re   (16  Blatchf.   410;   9 

Fed.  Cas.  1082>,  389. 
In  Gallinger,  re  (1  Saw.  224;  9  Fed. 

Cas.  1108),  161. 
In  Gallison,  re  (2  Low.  72;  9  Fed.  Cas. 

1009),  106,  129,  294. 
In  Garrett,  re  (2  Hughes,  235;  10  Fed. 

Cas.  47),  46,  90,  156. 
In  Garrison,  re  (5  Ben.  430;  10  Fed. 

Cas.  49),  146. 
In  Gay,  re  (1  Hask.  108;  10  Fed.  Cas. 

105),  136,  146. 
In  Gaylor,  re  (10  Fed.  Cas.  119),  230. 
In  Gebhardt,  re  (3  N.  B.  R.  268;  10 

Fed.  Cas.  141),  170. 
In  George,  re  (1  Low.  409;  10  Fed. 

Cas.  193),  132,  136,  146. 
In   George,   re   fl   Low.  4!>4;   10  Fed. 

Cas.  195),  304. 
In  Gerney,  re   (7  Biss.  414;  11  Fed. 

Cas.  121),  242,  362,  372. 
In  Getehell,  re  (8  Ben.  256;  10  Fed. 

Cas.  268),  166,  167. 
In  Ghirardelli,  re  (1  Saw.  343;  10  Fed. 

Cas.  275),  47. 
In  Gies,  re  (12  N.  B.  R.  179;  10  Fed. 

Cas.  339),  302. 
In  Gilbert,  re  (1  N.  Y.  Leg.  Obs.  327; 

10  Fed.  Cas.  344),  67. 
In  Gilbert,  re  (1  Low.  340;  10  Fed. 

Cas.  344),  175,  177. 
In  Gile,  re  (5  Law.  Rep.  224;  10  Fed. 

Cas.  369  [1842]),  169. 
In   Gilley,  re    (2   Low.    250;    10   Fed. 

Cas.  390),  225. 
In  Gimke,  re  (4  N.  B.  E.  92;  11  Fed. 

Cas.  115),  100. 
In  Glaser,  re  (8  Ben.  180;  10  Fed.  Cas. 

464),  42. 
In  Glaser,  re  (2  N.  B.  R.  398;  10  Fed. 

Gas.  467),  179. 
In  Goedde,  re  (6  N.  B.  R.  295;  10  Fed. 

Cas.  524),  78. 
In  Gold  Mt.  M.  Co.,  re  (3  Saw.  601;  10 

Fed.  Cas.  556),  334. 


In  Golder,  re  (2  Hask.  28;  10  Fed.  Cas. 

547)    296. 
In   Goldschmidt,   re   (3   Ben.   379;   10 

Fed.  Cas.  564),  58. 
In  Goldstein,  re  (52  How.  Pr.  426;  10 

Fed.  Cas.  569),  42. 
In  Goodfellow,  re  (1  Low.  510;  11  Fed. 

Cas.  594),  51,  63,  137. 
In  Goodman,  re  (5  Biss.  401;  10  Fed. 

Cas.  601),  64. 
In  Goodridge,  re  (2  N.  B.  R.  324;  10 

Fed.  Cas.  613),  137. 
In  Goodwin,  re  (5  Dill.  140;  10  Fed. 

Cas.  617),  296. 
In  Goold,  re  (2  Hask.  34;  10  Fed.  Cas. 

761),  74. 
In   Gorham.   re   (9  Biss.  23;  10  Fed. 

Cas.  823),  66,  70. 
In  Grady,  re  (3  N.  B.  R.  227;  10  Fed. 

Cas.  904),  72. 
In  Graham,  re  (8  Ben.  419;  10  Fed. 

Cas.  913),  179. 
In  Graham,  re  (2  Biss.  449;  10  Fed. 

Cas.  914),  90. 
In  Granger,  re  (8  N.  B.  R.  30;  10  Fed. 

Cas.  958),  232,  296. 
In  Grant,  rp  (2  N.  B.  R.  106;  10  Fed. 

Cas.  973),  209. 
In  Grant,  re  (6  Law  Rep.  158;  10  Fed. 

Cas.  970  [1843]),  296. 
In  Grant,   re  (2  Story,  312;  10  Fed. 

Cas.  973),  219. 
In  Graves,  re  (9  Fed.  Rep.  816),  238, 

299. 
In  Graves,  re  (24  Fed.  Eep.  550),  134, 

143. 
In  Great  Western  Tel.  Co.,  re  (5  Biss. 

1059;  10  Fed.  Cas.  1053),  167,  169, 

191. 
In   Greaves,  re   (5  Law  Eep.   25;  10 

Fed.  Cas.  1067  [1842]),  248. 
In  Green,  re  (7  Biss.  338;  10  Fed.  Cas. 

1084),  292. 
In  Green  Pond  R.  Co.,  re  (13  N.  B.  R. 

118;  10  Fed.  Cas.  1178),  47,  251. 
In  Greenbnnin.  rn  (i  Chi.  L.  J.  599;  10 

Fed.  Cas.  1156),  95,  119,  121. 
In  Greenfield,  re  (5  Ben.  552;  10  Fed. 

Cas.  1162),  29. 
In  Greenfield,  re  (6  Blatchf.  287;  10 

Fed.  Cas.  1165),  127. 
In  Greenville  &  C.  R.  Co.,  re  (5  Chi. 

Leg.    News,    124;    10    Fed.    Cas. 

1180),  30. 
In  Grefe,  re  (2  N.  B.  R.  329;  10  Fed. 

Cas.  1184),  132. 
In  Gregg,  re  (1  Hask.  173;  10  Fed. 

Cas.  1186),  351,  395. 
In  Gregg,  re  (4  N.  B.  R.  456;  10  Fed. 

Cas.  1191),  362. 


XXIV 


Table  of  Cases  Cited. 


In  Grieves,  re  (15  Alb.  L.  J.  167;  11 1  In  Hannahs,  re  (8  Ben.  475;  11  Fed. 


Fed.  Cas.  3),  145, 


Gas.  445),  144. 


In   Griffen,   re   (2   Ben.   209;   11   Fed.     In  Hannahs,  re  (8  Ben.  553;  11  Fed. 


Cas.  4),  177. 
In  Griffin,  re  KA  N.  B.  R.  254;  11  Fed. 

Cas.  5),  90. 
In  Griffin,  re  (8  Ben,  388;  11  Fed.  Cas. 

5),  117. 
In  Griffith,   re  (18  N.   B.   R.  510;   11 

Fed.  Cas.  38).  67.   ■ 
In  Grinnel,  re  (9  N.  B.  R.  137;  11  Fed. 

Cas.  50),  351. 
In  Groome,  re  (1  Fed.  Rep.  464),  134, 

169. 
In  Gutwillig.  re  (N.  Y.  Law  .T.   [De- 
cember 6,  1898]),  376. 
In  Haake,  re  (2  Saw.   231;  11  Fed. 

Gas.  134),  301. 
In  Haas,  re  (8  N.  B.  R.  189;  11  Fed. 

Gas.  138),  209. 
In  Hadley,  re  (12  N.  B.  R.  366;  11 

Fed.  Cas.  148),  160,  250. 
In  Hafer,  re  (1  N.  B.  R.  547;  11  Fed. 

Cas.  152),  91. 
In  Hagan,  re  (6  Ben.  407;  11  Fed.  Cas. 

154),  301. 
In  Hahnlen,  re  (1  Penn.  L.  J.  10;  11 

Fed.  Cas.  156),  400. 
In  Hale,  re  (18  N.  B.  R.  335;  11  Fed. 

Cas.  180),  381. 
In  Hale,  re  (19  N.  B.  R.  330;  11  Fed. 

Cas.  181),  40. 
In  Hall,  re  (1  Dill.  585;  11  Fed.  Cas. 

199),  189. 
In  Hall,  re  (2  Hughes,  411;  11  Fed. 

Cas.  199),  86. 
In  Hall,  re  (2  N.  B.  R.  192;  11  Fed. 

Cas.  201),  245. 
In  Hallie.  re  (7  Ben.  182;  11  Fed.  Cas. 

290),  231. 
In  Hamburger,  re  (12  N.  B.  R.  277;  11 

Fed.  Cas.  317),  311. 
In  Hamburger,  re  (8  Ben.  189;  11  Fed. 

Cas.  317),  314. 
In  Hambright,  re  (2  N.  B.  R.  498;  11 

Fed.  Cas.  314),  351. 
In  Hamilton,  re  (1  Fed.  Rep.  800),  286, 

288. 
In  Hamlin,  re  (8  Biss.  122;  11  Fed. 

Gas.  369),  67,  111,  125. 
In  Hammond,  re  (1  Low.  381;  11  Fed. 

Cas.  380),  99,  146. 
In  Handell,  re  (15  N.  B.  R.  71;  11  Fed. 

Cas.  420),  313. 
In  Handlin,  re  (3  Dill.  290;  11  Fed. 

Cas.  421)    91. 
In  Hanibel,  re  (15  N.  B.  B.  233;  11 

Fed.  Cas.  431),  158,  160. 
In  Hanna,  re  (4  Ben.  469;  11  Fed.  Cas. 

436),  400. 


Cas.  446),  119. 
In   Hanson,   re  (2  N.   B.   B.   211;   11 

Fed.  Gas.  463),  130. 
In  Hapgood,  re  (2  Low.  200;  11  Fed. 

Cas.  473),  271. 
In  Hapgood,  re  (2  Low.  491;  12  Fed. 

Cas.  260),  317. 
In  Harbough,  re  (15  N.  B.  R.  246;  11 

Fed.  Cas.  476),  71. 
In  Hardin,  re  (Fed.   Cas.  No.  6048),. 

299. 
In  Hardin,  re  (1  Hask.  163;  11  Fed. 

Cas.  488),  298,  299. 
In  Hardison,  re  (4  Law  Rep.  255;  11 

Fed.  Cas.  498  [1842]),  167. 
In  Harlow,  re  (10  N.  B.  R.  280;  11 

Fed.  Cas.  528),  348. 
In  Harper,  re  (6  Chi.  Leg.  News,  279; 

11  Fed.  Cas.  572),  141. 
In  Harris,  re  (6  Ben.  375;  11  Fed.  Cas. 

611),  255. 
In  Harrison,   re   (22  Fed.   Rep.  528),. 

128. 
In  Hartel,  re  (7  N.  B.  B.  559;  11  Fed. 

Cas.  697),  237. 
In  Harthill,  re  (4  Ben.  448;  11  Fed. 

Cas.  704),  382. 
In  Harthorn,  re  (4  N.  B.  R.  103;  11 

Fed.  Cas.  705),  315. 
In  Hartough,  re  (3  N.  B.  R.  422;  11 

Fed.  Cas.  707),  70. 
In  Hasbrouck,  re  (1  Ben.  402;  11  Fed. 

Gas.  767),  202. 
In  Haskell,  re  (4  N.  B.  R.  558;  11  Fed. 

Cas.  770),  192. 
In  Hatcher,  re  (1  N.  B.  R.  390;  11 

Fed.  Gas.  814),  170. 
In  Hathorn,  re  (2  Woods,  73;  11  Fed. 

Cas.  822),  43. 
In  Hatje,  re  (6  Biss.  436;  11  Fed.  Cas. 

823),  163,  292,  306. 
In  Hauck,  re  (17  N.  B.  R.  158;  11  Fed. 

Cas.  831),  274. 
In  Havens,  re  (8  Ben.  309;  11  Fed. 

Cas.  847),  396. 
In  Havens,   re   (1  N.   B.   R.  485;   11 

Fed.  Cas.  849),  208. 
In  Hay,  re  (6  Chi.  Leg.  News,  256;  11 

Fed.  Cas.  886),  395. 
In  Hay,  re  (2  Low.  180;  11  Fed.  Gas.. 

887),   00. 
In  Hayden,  re  (7  N.  B.  B.  192;  11  Fed. 

Cas.  897),  99. 
In  Haynes.  re  (2  N.  B.  R.  227;  11  Fed. 

Cas.  914),  206,  319. 
In  Hazenes,  re  (4  Dill.  549;  11  Fed. 
Cas.  941),  248. 


Table  of  Cases  Cited. 


XXV 


In  Heath,  re  (7  N.  B.  R.  448;  11  Fed. 

Cas.  975),  176. 
In  Heck,  re  (19  N.  B.  R.  299;  12  Fed. 

Gas.  113),  290. 
In  HefEron,  re  (6  Biss.  156;  11  Fed. 

Cas.  1020),  254. 
In  Heller,  re  (3  Biss.  153;  11  Fed.  Cas. 

1051),  260. 
In  Heller,  re  (5  N.  B.  R.  46;  11  Fed. 

Cas.  1052),  97. 
In  Heller,  re  (9  Fed.  Rep.  373),  139. 
In  Heller,  re  (11  Fed.  Cas.  1052),  171. 
In  Henderson,  re  (9  Fed.  Rep.  196), 

160    247   252. 
In  Heukel,  're   (2  Saw.  305;  11  Fed. 

Cas.  1124),  85. 
In  Hennocksburgh,  re  (6  Ben.  150;  11 

Fed.  Cas.  1136),  293. 
In  Henry,  re  (9  Ben.  449;  11  Fed.  Cas. 

1148),  125. 
In  Herdic,  re  (1  Fed.  Rep.  242),  132. 
In  Herdic,  re  (40  Fed.  Rep.  360),  369. 
In  Herpich,  re  (7  Biss.  387;  12  Fed. 

Cas.  40),  343. 
In  Herrick,   re  (7  N.   B.   R.  341;  12 

Fed.  Cas.  41),  148. 
In  Herrick,  re  (13  N.  B.  E.  312;  12 

Fed.  Cas.  42),  318,  320. 
In  Herrick,  re  (7  N.  B.  R.  341;  12  Fed. 

Cas.  43),  238. 
In  Herrman,  re  (9  Ben.  436;  12  Fed. 

Cas.  19)    124. 
In  Herrman,  re  (4  Ben.  126;  12  Fed. 

Cas.  53),  230. 
In  Hertzog,  re  (18  N.  B.  R.  526;  12 

Fed.  Cas.  59),'  299. 
In  Hester,  re  (5  N.  B.  R.  285;  12  Fed. 

Cas.  68),  92. 
In  Heusted,  re  (5  Law  Rep.  510;  12 

Fed.  Cas.  71  [1843]),  162. 
In  Heydett,  (8  N.  B.  R.  332;  12  Fed. 

Cas.  86),  159. 
In  Heys,  re  (1  Ben.  333;  12  Fed.  Cas. 

91),  225. 
In  Hezekiah,  re  (2  Dill.  551;  12  Fed. 

Cas.   92),   91. 
In  Hicks,  re  (2  Fed.  Rep.  851),  180, 

202. 
In  Hill,  re  (5  Fed.  Rep.  448),  97. 
In  Hill,  re  (2  N.  B.  R.  140;  12  Fed. 

Cas.  49)   40. 
In  Hill,  re  (1  Ben.  321;  12  Fed.  Cas. 

144),  97,  163,  202,  244,  245. 
In  Hill,  re  (2  Ben.  136;  12  Fed.  Cas. 

146),  135. 
In  Hill,  re  (2  Ben.  349;  12  Fed.  Cas. 

147),  136. 
In  Hinds,  re  (3  N.  B.  R.  351;  12  Fed. 

Cas.  202),  348. 


In  Hines,  re  (7  Ben.  427;  12  Fed.  Cas. 

1136),  252. 
In  Hinsdale,  re  (7  Ben.  9;  12  Fed.  Cas. 

207),  121. 
In  Hoagland,  re  (18  N.  B.  R.  530;  12 

Fed.  Cas.  251),  310. 
In  Hodges,  re  (11  N.  B.  R.  369;  12 

Fed.  Cas.  281),  35. 
In  Holbrook,  re  (2  Low.  259;  12  Fed. 

Cas.  317),  237,  k:91. 
In  Holgate,  re  (8  Ben.  255;  12  Fed. 

Cas.  335),  149. 
In  Holland,  re  (2  Hask.  90;  12  Fed. 

Cas.  335),  56. 
In  Holland,  re  (8  N.   B.  R.   190;  12 

Fed.  Cas.  337),  241. 
In  Holland,  re  (12  N.  B.  R.  403;  12 

Fed.  Cas.  338),  382. 
In  HoUenshade,  re  (2  Bond,  210;  12 

Fed.  Cas.  346),  141. 
In  Hollister,  re  (3  Fed.  Rep.  452),  74, 

295. 
In  Holmes,  re  (14  N.  B.  R.  493;  12 

Fed.  Cas.  392),  305. 
In  Holmes,  re  (8  Ben.  74;  12  Fed.  Cas. 

393),  116. 
In  Holmes,  re  (1  N.  Y.  Leg.  Obs.  211; 

12  Fed.  Cas.  401),  349,  409. 
In  Holmes,  re  (14  N.  B.  B.  209;  12 

Fed.  Cas.  402),  127. 
In  Hoist,  re  (11  Fed.  Rep.  856),  171. 
In  Holt,  re  (3  N.  B.  R.  241;  12  Fed. 

Cas.  428),  205. 
In  Hook,  re  (2  Dill.  92;  12  Fed.  Cas. 

453).  86. 
In  Hook,  re  (11  N.  B.  R.  282;  12  Fed. 

Cas.  463),  298. 
In  Hoole,  re  (3  Fed.  Rep.  496),  195, 

215,  348. 
In  Hopkins,  re  (18  N.  B.  R.  490;  12 

Fed.    Cas.   491),   162. 
In  Hortou,  re  (5  Ben.  562;  12  Fed.  CaS. 

536),  239. 
In  Hosie,  re  (7  N.  B.  R.  601;  12  Fed. 

Cas..  520),  316. 
In  Houghton,  re  (4  Law  Rep.  482;  12 

Fed.  Cas.  586  [1842]),  166. 
In  Houghton,  re  (2  Low.  243;  12  Fed. 

Cas.  588),  207. 
In  Houghton,  re  (2  Low.  328;  12  Fed. 

Cas.  589),  129,  132. 
In  Housberger,  re  (2  Ben.  504;  12  Fed. 

Cas.  596),  339. 
In  House,  re  (1  N.  Y.  Leg.  Obs.  348; 

12  Fed.  Cas.  598  [1843]),  262. 
In  How,  re  (18  N.  B.  R.  565;  12  Fed. 

Cas.  621),  214. 


XXVI 


Table  of  Cases  Cited. 


In  Howard,  re  (4  N.   B.   R.   571;  12 

Fed.  Gas.  625),  319. 
In  Howard,  re  (6  N.  B.  R.  372;  2  Fed. 

Cas.  628),  295. 
In   Howes,   re   (7  Ben.   102;   12  Fed. 

Cas.  712),  382. 
In  Hoyt,  i-e  (3  N.  B.  R.  55;  12  Fed. 

Gas.  760),  218. 
In  Hubbard,  re  (1  Low.  190;  12  Fed. 

Cas.  775),  232. 
In  Hubble,  re  (9  N.  B.  R.  523;  12  Fed. 

Cas.  791),  313. 
In  Huddell,  re  (47  Fed.  Rep.  206),  151. 
In   Hufnagel,    re   (12  N.    B.    R.   554; 

12  Fed.  Cas.  819),  285,  294,  334. 
in  Hughes,  re  (2  Ben.  85;  12  Fed.  Gas. 

829),  284. 
In  Hughes,  re  (8  Biss.  107;  12  Fed. 

Cas.  832),  94. 
In  Hughes,  re  (11  N.  B.  R.  452;  12 

Fed.  Cas.  833),  336. 
In  Hull,  re  (14  Blatchf.  257;  12  Fed. 

Cas.  858),  335. 
In  Hulst,  re  (7  Ben.  17;  12  Fed.  Cas. 

864),  382. 
In  Hulst,  re  (7  Ben.  40;  12  Fed.  Cas. 

867),  180. 
In  Hunt,  re  (26  Fed.  Rep.  739),  143. 
In  Hunt,  re  (2  N.  B.  R.  539;  12  Fed. 

Gas.  898),  359. 
In  Hunt,  re  (5  N.  B.  R.  433;  12  Fed. 

Cas.  900),  241. 
In  Hunt,  re  (5  N.  B.  R.  499;  12  Fed. 

Gas.  902),  83. 
In  Hunt,  re  (17  N.  B.  R.  205;  12  Fed. 

Cas.  902),  208. 
In   Hurst,   re   (13  N.   B.   R.   455;   12 

Fed.  Gas.  1020),  121. 
In  Hussey,  re  (2  Hask.  244;  12  Fed. 

Gas.    1052),   92. 
In  Hussman,  re  (2  N.  B.  R.  737;  12 

Fed.  Gas.  1073),  138. 
In   Hutto,    re    (3    N.    B.    R.    787;    12 

Fed.   Cas.   1094),  326. 
In  Hyde,  re  (6  Fed.  Rep.  587),  404. 
In  Hyde,  re  (6  Fed.  Rep.  869),  190. 
In   Hyman,   re    (3  Ben.   28;    12   Fed. 

Cas.  1134),  203. 
In  Hyman,  re  (8  N.   B.   R.;  12  Fed. 

Gas.  1135),  116. 
In  Independent  Ins.   Go.,   re  (2  Low. 

187;  13  Fed.  Gas.  20),  287. 
In  Independent  InS.  Co.,  re  (Holmes, 

103;  13  Fed.  Gas.  13),  65. 
In  Indianapolis;  G.  &  L.  R.  Co.,  re' (5 

Blss.  287;  13  Fed.  Cas.  27),  65. 
In  Iron  Mountain  Co.,  re  (9  Blatchf. 

320;  18  Fed.  Cas.  97),   108. 
In  Irons,  re  (18  N.  B.  R.  95;  13  Fed. 

Cas.  99),  305. 


In  Irving,  re  (8  Ben.  463;  8  Fed.  Cas. 

108),  34. 
In  Irving,  re  (17  N.  B.  R.  22;  13  Fed. 

Cas.  110),  81. 
In  Isaacs,  re  (3  Saw.  35;  13  Fed.  Cas. 

148),  77. 
In   Isador,   re    (2   Ben.   123;   13   Fed. 

Cas.  67),  132. 
In  Israel,  re  (3  Dill.  511;  13  Fed.  Cas. 

175),  251. 
In  Ives,  re  (5  Dill.  146;  13  Fed.  Cas. 

181),  147. 
In  Ives,  re  (18  N.  B.  R.  28;  13  Fed. 

Cas.  183),  311. 
In  Jackson,  re  (7  Biss.  280;  13  Fed. 

Cas.  191),  210. 
In  Jackson,   re   (2  N.   B.   R.  508;  13 

Fed.  Cas.  203),  83. 
In  Jackson  I.  M.  Co.,  re  (15  N.  B.  R. 

438;  13  Fed.  Cas.  260),  263. 
In  Jacobs,  re  (18  N.  B.  R.  ^8;  13  Fed. 

Cas.  271),  119. 
In  Jacoby,  re  (1  N.  B.  R.  118;  13  Fed. 

Cas.  279),  102. 
In  Jacoby,  re  (13  Fed.  Cas.  280),  230^. 
In  Janeway,  re  (8  Ben.  267;  13  Fed. 

Cas.  347),  119. 
In  Janeway,  re  (4  N.  B.  R.  100;  13 

Fed.  Gas.  348),  352. 
In  Jaycox,  re  (13.  Blatchf.  70;  13  Fed. 

Cas.  393),  296. 
In  Jaycox,  re  (7  N.  B.  R.  140;  13  Fed. 

Gas.  308),  291. 
In  .Jaycox,  re  (7  N.  B.  R.  303;  13  Fed. 

Gas.  399),  226. 
In  Jaycox,  re  (8  N.  B.  R.  241;  13  Fed. 

Cas.  409),  234. 
In  Jefferson  Ins.   Co.,   re   (2  Hughes, 

255;  13  Fed.  Gas.  432),  255. 
In  Jenks,  re  (15  N.  B.  R.  301;  13  Fed! 

Cas.  535),  306. 
In  Jessup,  re  (19  Fed.  Rop.  94),  138. 
In  Jewett,  re  (3  Fed.  Rep.  503),  139,- 

144. 
In  Jewett,  re  (1  N.  B.  R.  491;  13  Fed. 

Gas.  583),  79. 
In  Jewett,   re   (7  Biss.   242;   13  Fed.- 

Gas.  584),  251. 
In  Jewett,   re   (7  Biss.   473;   13  Fed.- 
Gas.  591;  7  Biss.  328;  13  Fed.  Gag* 
585),  67. 
In  Jewett,  re  (1  N.  B.  R.  495;  13  Fed* 

Cas.  594),  79. 
In  Johnson,  re  (2  Low.  120;  13  Fed. 

Cas.  721),  263. 
In  Johnston,  re  (8  Ben.  191;  13  Fed. 

Cas.  870),  223. 
In  Johnston,  re  (14  N.  B.  R.  567-  13, 

Fed.  Cas.  881),  181. 
In  Jonas,  re  (16  N.  B.  R.  452;  13  Fed. 
Gas.  923),  162. 


Table  of  Cases  Cited. 


XXVIl 


In  Jones,  re  (6  Biss.  68;  13  Fed.  Cas. 

927),  295. 
In  Jones,  re  (2  Dill.  343;  13  Fed.  Cas. 

931),  90,  92. 
In  Jones,  re  (2  Low.  451;  13  Fed.  Gas. 

932),  141. 
In  Jones,  re  (2  N.  B.  R.  59;  13  Fed. 

Cas.  933),  211. 
In  Jones,  re  (4  N.  B.  R.  347;  13  Fed. 

Cas.  934),  390. 
In  Jones,  re  (6  N.  B.  R.  336;  13  Fed. 

Cas.  935),  178. 
In  Jones,  re  (7  N.  B.  R.  506;  13  Fed. 

Cas.  935),  166. 
In  Jordan,  re  (2  Fed.  Rep.  319),  286, 

288 
In  Jordan,  re  (8  N.  B.  R.  180;  13  Fed. 

Cas.   1079;  10  N.   B.   R.   427;   13 

Fed.  Cas.  1082),  90,  353. 
In  Jordan,  re  (9  N.  B.  R.  416;  13  Fed. 

Cas.  1121),  263. 
In  Jorey,   re   (2  Bond,   330;   13   Fed. 

Cas.   112!2),   145. 
In  Joselyn.   re  (2  Biss.  235;  13  Fed. 

Cas.  1159),  344. 
In  Joseph,  re  (24  Fed.  Rep.  137),  115, 

192. 
In  Joseph,  re  (2  Woods,  390;  13  Fed. 

Cas.   1124),  242. 
In  Jndkins.  re  (2  Hushes,  401;  13  Fed. 

Cas.  1193),  83,  168. 
In  Judson,  re  (2  Ben.  210;  14  Fed.  Cas. 

2),  179. 
In  Kahley,  re  (2  Biss.  383;  14  Fed. 
•     Cas.  71),  324,  364. 
InKallish.   re   (Deady,  575;   14  Fed. 

Cas.  93),  96. 
In  Kansas  City  S.,  etc.,  Co..  re  (9  N. 

B.  R.  76;  14  Fed.  Cas.  128),  263. 
In  Kasson,  re   (4  Law  Rep.  489;  14 

Fed.  Cas.  138  [1842]).  93. 
In  Kaufman,  re  (8  Ben.  394;  14  Fed. 

Cas.  153),  235. 
In  Kaufman,  re  (19  N.  B.  R.  283;  14 

Fed.  Cas.  154).  362. 
In  Keach,   re   (1   Low.   335;   14  Fed. 

Cas.  156),  146. 
In  Kean,  re  (2  Hughes,  322;  14  Fed. 

Cas.  157),  89. 
In  Keefer,  re  (4  N.  B.  R.  389;  14  Fed. 
.     Cas.  172),  131,  140. 
In  Keeler,  re  (10  N.  B.  R.  419;  14  Fed. 

Cas.  176),  250. 
In    Koiler,    re    (18   N.    B.    R.    10;    14 

Fed.  Cas.  210),  249. 
In  Keilpr,  re  (18  N.  B.  R.  36;  14  Fed. 

Cas.  216),  118,  119. 
In  Keller,  re  (18  N.  B.  R.  331;  14  Fed. 

Cas.  233),  118. 


In  Kelley,  re   (19  N.  B.   R.  326;  14 

Fed.  Cas.  236),  71. 
In  Kelly,  re  (3  Fed.  Rep.  219),  120. 
In  Kelly,  re  (18  Fed.  Rep.  528),  310. 
In  Kempner  (6  N.  B.  R.  521;  14  Fed. 

Cas.  290),  391. 
In  Kennedy,   re  (7  N.  B.   R.  337;  14 

Fed.  as.  308),  198. 
In   Kenuedy,   re   (14  Fed.    Cas.   309), 

313. 
In  Kerosene  Oil  Co.,  re  (3  Ben.  35;  14 

Fed.  Cas.  379),  41. 
In   Kerosene   Oil   Co.,   re   (6  Blatchf. 

521;  14  Fed.  Cas.  380),  41. 
In  Kerr,  re  (2  N.  B.  R.  388;  14  Fed. 

Cas.  385),  330. 
In  Kerr,  re  (9  N.  B.  R.  566;  14  Fed. 

Cas.  386),  82. 
In  Ketchum,  re  (1  Fed.  Rep.  815),  73. 
In   Ketchum,    re    (1   Fed.    Rep.   838), 

231,  387. 
In  Keyser,   re   (9  Ben.   324;  14  Fed. 

Cas.  442)   231. 
In  Kimball, 're   (2  Ben.   38;   14  Fed. 

Cas.  474),  174. 
In  Kimball,  re  (2  Ben.  554;  14  Fed. 

Cas.  476),  102. 
In   Kimball,    re    (6   Blatchf.   299;    14 

Fed.  Cas.  478),  154, 
In  Kimball,  re  (1  N.  Y.  L.  J.  230;  14 

Fed.  Cas.  480),  218. 
In  King,  re  (3  Fed.  Rep.  839),  217. 
In  King,  re  (4  Biss.  319;  14  Fed.  Cas. 

503),  284,  314. 
In  King,  re  (10  N.  B.  R.  104;  14  Fed. 

Cas.  506),  256. 
In  King,  re  (1  N.  Y.  Leg.  Obs.  22;  14 

Fed.  Cas.  507  [1842]),  128. 
In  King,  re  (1  N.  Y.  Leg.  Obs.  276; 

14  Fed.  Cas.  509),  250. 
In  Kingsbury,  re  (3  N.  B.  R.  317;  14 

Fed.   Cas.  582),  241. 
In  Kingsley,  re  (6  Ben.  300;  14  Fed. 

Cas.  587),  175. 
In  Kingsley,  re  (1  Low.  216;  14  Fed. 

Cas.  587),  298,  299. 
In  Kingsley,  re  (16  N.  B.  R.  301;  14 

Fed.  Cas.  590),  173. 
In  Kingsley,  re  (Fed  Cas.  No.  7819), 

299. 
In  Kinkead,  re  (3  Biss.  405;  14  Fed. 

Cas.  599),  70,  77. 
In  Kinne,  re  (5  Fed.  Rep.  59),  232. 
In   Kinsman,   re   (1  N.   Y.  Leg.   Obs. 

309;  14  Fed.  Cas.  643  [18431).  25. 
In  Kintzing,  re  (3  N.  B.  R.  217;  14 

Fed.  Cas.  644),  33. 
In  Kintzinger,  re   (19  N.   B.   R.  152; 

14  Fed.  Cas.  709),  258,  293,  3C0, 

301. 


:xxvm 


Table  of  Cases  Cited. 


In  Kipp,  re  (4  N.  B.  R.  593;  14  Fed. 

Cas.  653),  239. 
In  Klein,  re  (1  How.  277,  n.;  14  Fed. 

Cas.  716),  49. 
In  Klein,  re  (2  N.  Y.  Leg.  Obs.  185; 

14  Fed.  Cas.  719),  49. 
In   Knight,  re  (2  Biss.   518;   14  Fed. 

Cas.  752),  43,  78. 
In  Knoepfel,  re  (1  Ben.  330;  14  Fed. 

Cas.  782),  225,  230,  300. 
In  Knott,  re  (14  Fed.  Cas.  785),  399. 
In  Kock,  re  (1  N.  B.  R.  549;  14  Fed. 

Cas.  832),  173,  175. 
In  Kohlsaat,  re  (18  N.  B.  R.  570;  14 

Fed.  Cas.  833),  40,  125. 
In  Kraft,  re  (3  Fed.  Bep.  892),  129. 
In  Kraft,  re  (4  Fed.  Rep.  523),  144. 
In  Krogman,  re  (5  N.  B.  R.  116;  14 

Fed.  Cas.  866),  114. 
In  Krueger,  re  (2  Low.  66;  14  Fed. 

Cas.  868),  70. 
In  Krueger,  re  (2  Low.  182;  14  Fed. 

Cas.  870),  178. 
In  Krum,  re  (7  Ben.  5;  14  Fed.  Cas. 

872),  339. 
In   Kurth,   re   (17   N.   B.   R.   573;   14 

Fed.  Cas.  879),  307. 
In  Kvler.  re  (2  Ben.  414;  14  Fed.  Cas. 

887),  27,  178. 
In  Lacey,  re  (12  Bltaclif.  322;  14  Fed. 

Cas.  906),  254. 
In  Lacey,  re  (4  N.  B.  R.  62;  14  Fed. 

Cas.  920),  325. 
In  Laehemeyer,  re  (18  N.  B.  R.  270; 

14  Fed.   Cas.  914).   292. 
In  Lady  Bryan  Min.  Co.,  re  (6  N.  B. 

R.  252;  14  Fed.  Cas.  928),  42,  96. 
In  Lady  Bryan  Min.  Co.,  re  (6  N.  B. 

R.  252;  Fed.  Cas.  No.  7980),  411, 

412. 
In  Lains,  re  (16  N.  B.  R.  168;  14  Fed. 

Cas.  941),  307. 
In  Lake,  re  (3  Biss.  204;  14  Fed.  Cas. 

944),  164,  385,  389. 
In  Lake  Superior  Ship  Canal  R.  I.  Co., 

re  (7  N.  B.  R.  376;  14  Fed.  Cas. 

951),  206,  210. 
In  Lalor,  re  (19  N.  B.  R.  353;  14  Fed. 

Cas.  962),  255. 
In  Lambert,  re  (2  N.   B.  R.  426;  14 

Fed.  Cas.  1045),  215. 
In   Lambson,   re   (2  Hughes,   233;   14 

Fed.  Cas.  1047).  93. 
In  Lammer,  re  (7  Biss.  269;  14  Fed. 

Cas.  1048),  87. 
In  Lane,  re  (2  Low.  305;  14  Fed.  Cas. 

1009),  378. 
In  Lane,  re  (3  Ben.  98;  14  Fed.  Cas. 
1069),  201. 


In  Lane,  re  (2  Low.  333;  14  Fed.  Cas. 

1070),  124,  281,  288. 
In  Lanier,  re  (2  N.  B.  R.  154;  14  Fed. 

Cas.  1116),  174. 
In  Lang,  re  (2  N.  B.  R.  480;  14  Fed. 

Cas.  1097),  190. 
In  Langdon,  re  (2  Low.  387;  14  Fed. 

Cas.  1099),  121. 
In  Lathrop,  re  (3  Ben.  490;  14  Fed. 

Cas.  1170),  292,  298. 
In   Lathrop,   re   (3   N.   B.   R.    46;   14 

Fed.   Cas.   1175),  135. 
In  Lathrop,  re  (5  N.   B.   R.  199;   14 

Fed.  Cas.  1173),  320. 
In  Lathrop,  re  (4  N.  B.  R.  93;  14  Fed. 

Cas.  1179),  179. 
In  Lawrence,  re  (10  Ben.  4;  15  Fed. 

Cas.  21),  58,  163. 
In  Lawson,  re  (2  N.  B.  R.  113;  15  Fed. 

Cas.  88),  208. 
In  Lawson,  re  (2  N.  B.  R.  54;  15  Fed. 

Cas.  87),  89. 
In  Leachman,  re  (1  N.  B.  R.  391;  15 

Fed.  Cas.  97),  174. 
In  Leavitt.  re  (1  Hask.  194;  15  Fed. 

Cas.  122).  77.  137.  141. 
In  Lee,  re  (14  N.  B.  R.  89;  15  Fed. 

Cas.  135),  241. 
In  Leeds,  re  (1  N.  B.  R.  521;  15  Fed. 

Cas.  239),  59. 
In  Le  Favour,  re  (8  Ben.  43;  15  Fed. 

Cas.  244),  251. 
In  Leibenstein,  re  (4  Chi.  Leg.  News, 

309;  15  Fed.  Cas.  259),  42. 
In  Leighton,  re  (4  Ben.  457;  15  Fed. 

Cas.  265),  26. 
In   Leland.   re   (5   Ben.   168;   15  Fed. 

Cas.  275),  29. 
In   Leland.   re   (6  Ben.   175;   15   Fed. 

Cas.  278),  181,  241. 
In  Leland,   re   (8   Ben.   204;   15  Fed. 

Cas.  290),  69,  179.  205. 
In  Leland,  re  (10  Blatchf.  503;  15  Fed. 

Cas.  292),  330. 
In    Leland.    re    (14   Blatchf.    240;    15 

Fed.    Cas.   290),    239. 
In  Leonard,   re  (4  N.  B.   R.  562;  15 

Fed.  Cas.  331),  161. 
In  Ijeppein,  re  (1  Penn.  L.  J.  223;  15 

Fed.  Cas.  353),  344. 
In  Leszynsky,  re  (3  Ben.  487;  15  Fed. 

Cas.  397),  293. 
In  Letchworth,  re  (18  Fed.  Rep.  822), 

235. 
In  Levi,  re  (2  Ben.  169;  15  Fed.  Cas. 

431),  128. 
In  Levin,  re  (7  Biss.  231 ;  15  Fed.  Cas. 
421),  132. 


Table  of  Cases  Cited. 


XXII 


In    Levy,    re    (1    Byn.    4M-    19   Fed. 

Cas.  425),  179. 
Ill  Levy,  re  (1  Ben.  4'JC;  15  Fed.  Cas. 

427),  174,  181. 
In  Levy,  re  (2  Ben.  IGO;  l.">  Fetl.  Ciis. 

431),  150. 
In  Levy,  re  (1  X.  B.  R.  lO,",;  15  Fed. 

Cas.  432),  178. 
In  Levy,  re  (1  N.  B.  R.  184;  15  Fed. 

Cas.  433),  243. 
In  Lewis,  re  (4  Ben.  67;  15  Fed.  Cas. 

453),  179. 
In  Lewis,  re  (2  Hnghes,  320;  15  Fed. 

Cas.  455).  76. 
In  Lewis,  re  (14  N.  B.  R.  144;  15  Fed. 

Cas.  456),  119. 
In    Linforth.    re    (87    Fed.    Rep.    386 

[1898]),  235. 
lu  Linforth,  re  (4  Saw.  370;  15  Fed. 

Cas.  558),  391. 
In  Litchfield,  re  (5  Fed.  Rep.  47).  79. 
In  Litchfield,   re  (1:!  Fed.   Rep.  863), 

35,  104. 
In  Little,  re  (3  Ben.  25;  15  Fed.  Cas. 

599),  26. 
In  Little,  re  (19  X.  B.  R.  2.^4:  15  Fed. 

Cas.  600),  117, 
In  Littlefield.  re  (1  Low.  331;  15  Fed. 

Cas.  624).  146,  172. 
Tn  Lloyd,  re  (11  Fed.  Rep.  586).  405. 
In  Lloyd,  re  (22  Fed.  Rep.  ZS).  79. 
In  Lloyd,  re  (15  X.  B.  R.  257;  15  Fed. 

Cas.  711),  232.  251. 
In  Lloyd,  re  (15  Fed.  Cas.  717),  122. 
In    Locke,   re   (1    Low.   293;   15  Fed. 

Cas.  734).  140. 
In  I/oder,  re  (4  Ben.  123;  15  Fed.  Cas. 

777),  231. 
In    Long,    re    (26    Lee.    Int.    349;    15 

Fed.  Cas.  812).  389. 
In  Longest,  re  (7  Biss.  477;  15  Fed. 

Cas.  833).  129. 
In   Longfellow,    re    (?.  Hask.    221;    15 

Fed.  Cas.  834),  353. 
In  Lord,  re    (3  N.  B.  R.  253;  15  Fed. 

Cas.  872).  174. 
In  Lord,  re  (5  N.  B.  R.  318;  15  Fed. 

Cas.  873).  260. 
In  Lord,  re  (5  Law  Rep.  2.58:  15  Fed. 

Cas.  872  [1842]),  139,  157. 
In  Loring.  re  (Holmes,  483;  15  Fed. 

Cas.  895),  243. 
In  Louis,  re  (3  Ben.  153;  15  Fed.  Cas. 

940),  366. 
In  Louis,  re  (7  Beu.  481;  15  Fed.  Cas. 

942),  121. 
In  Lount.  re  (11  N.  B.  R.  315;  15  Fed. 

Cas.  988),  179. 
In  Low,  re  (11  N.  B.  R.  221;  15  Fed. 

Cas.  1015),  77. 


In  Lowe,  re  (19  Fed.  Rep.  589),  374. 
In  Lowenstein  et  al.,  re  (3  Ben.  422; 

15  Fed.  Cas.  1025),  303,  377. 
In  Lowerre,  re  (1  Ben.  4()6;  15  Fed. 

Cas.  1030),  232. 
In  Lucius  Hart  Mfg.  Co.,  re  (17  N.  B. 

R.  459;  15  Fed.  Cas.  1079),  311. 
In  Ludlow,  re  (1  N.  Y.  Leg.  Obs.  322; 

15  Fed.  Cas.  1079  [1843)),  90,  395. 
In   Ludwigson,   re   (3  Woods,   13;   15 

Fed.  Cas.  1102),  399,  400. 
In   Lumpkin,   re   (2   Hughes,   175;   15 

Fed.  Cas.  1110).  87. 
In  Lynch,  re  (7  Ben.  26;  15  P^ed.  Cas. 

1171),  311. 
In  Lyon,  re  (1  N.  B.  R.  Ill;  15  Fed. 

Cas.  1179),  176. 
In  Lyon,  re  (7  N.  B.  R.  182:  15  Fed. 

Cas.  1180),  396. 
In  Lyon,  re  (2  Saw.  524;  15  Fed.  Cas. 

1192),  64. 
In  McAdam,  re  (4  Saw.  119;  15  Fed. 

Cas.  1201),  251. 
In  McBride,  re  (15  Fed.   Cas.  1218), 

204. 
In  McBrien.  re  (2  Ben.  513:  15  Fed. 

Cas.  1218),  175. 
In  McBrien.  re  (3  Ben.  481;  15  Fed. 

Cas.  1219),  175. 
In  McCarthy,  re  (15  Alb.  L.  J.  293;  15 

Fed.  Cas.  1252),  146. 
In  MeClellan,  re  (1  N.  B.  R.  389;  15 

Fed.  Cas.  1268),  400. 
In  McConnell,  re  (9  N.  B.  B.  387;  15 

Fed.  Cas.  1297),  235. 
In  McDonald,  re  (14  N.  B.  R.  477;  16 

Fed.  Cas.  36),  129,  242,  297. 
In  McDonough.  re  (3  N.  B.  R.  221:  16 

Fed.  Cas.  68),  264,  275. 
In  McDowell,  re  (6  Biss.  193;  16  Fed. 

Cas.  69),  116. 
In  MrBwen,  re  (6  Biss.  294;  16  Fed. 

Cas.  82),  78,  79. 
In   McFarland,   re   (16  Fed.   Cas.   89 

[1842]),  144. 
In  McFarland.  re  (10  N.  B.  R.  31;  16 

Fed.  Cas.  89),  75. 
In  McGilpon,  re.  (3  Biss.  144;  16  Fed. 

Cas.  107),  106,  402. 
In  McGlyn,  re  (2  Low.  127;  16  Fed. 

Cas.  122),  199,  210. 
In  McGrath,  re  (5  Ben.  183;  16  Fed. 

Cas.   126),   312. 
In  McGuire,  re  (8  Ben.  452;  16  Fed. 

Cas.  133),  293. 
In  Mclntire,  re  (2  Ben.  345;  16  Fed. 

Cas.  150),  130,  150. 
In  Mcintosh,  re  (2  N.  B.  R.  506;  16 

Fed.  Cas.  151),  232. 


XXX 


Table  of  Cases  Cited. 


In  McKeon,  i-o  (7  Ben.  513;  16  Fed. 

Cas.  207),  254. 
In  McKenna,  re  (0  Peel.  Rep.  27),  386, 

408. 
In  McKibben,  re  (12  N.  B.  R.  97;  16 

Fed.  Cas.  210),  56,  382. 
In  McKinley,  re  (7  Ben.  562;  16  Fed. 

Cas.  218),  253. 
In  McKinney,  re  (15  Fed.  Cas.  912), 

290. 
In  McNab  &  H.  M.  Co.,  re  (18  N.  B. 

R.  388;  16  Fed.  Cas.  313),  119. 
In  McLean,  re  (15  N.  B.  R.  333;  16 

Fed.  Cas.  240),  75. 
In  McNair,  re  (2  N.  B.  R.  343;  16  Fed. 

Cas.  315),  181. 
In  McNair.  re  (.S  N.  B.  R.  219;  16  Fed. 

Cas.  315)   174. 
In  McNaiighton,  re  (8  N.  B.  R.  44;  16 

Fed.   Cas.   .333),   159. 
In  McVey,  re  (2  N.  B.  R.  257;  16  Fed. 

Cas.  352),  135. 
In  Macay,  re  (1  Low.  561;  1  Fed.  Cas, 

746),  55. 
In  Maekav.  re  (4  N.  B.  R.  66;  16  Fed. 

Cas.  156),  146. 
In  Magee,  re  (16  Fed.  Cas.  382),  169. 
In  Magie.  re  (2  Ben.  369;  16  Fed.  Cas. 

406),  26. 
In  Mahoney,  re  (5  Fed.  Rep.  518),  217. 
In  Major,  re  (2  Hughes,  215;  16  Fed. 

Cas.  526),  48,  402. 
In  Malcolm,  re  (4  Law  Rep.  488;  16 

Fed.   Cas.  540   [18421),  1.59. 
In  Mallorv,   re  (1  Saw.  88.  98;  Fed. 

Cas.  No.  8991),  411,  412. 
In  Malory,  re  (4  N.  B.  R.  153;  16  Fed. 

Cas.  546),  211. 
In  Malory,  re  (1  Saw.  88;  16  Fed.  Cas. 

549),  47. 
In  Manahan,  re  (19  N.  B.  R.  65;  16 

Fed.  Cas.  569).  382. 
In  Manly,  re  (2  Bond,   261;   16  Fed. 

Cas.  628),  329. 
In  Mann,  re  (13  Blatchf.  401;  16  Fed. 

Cas.  634),  250. 
In  Mansfield,  re  (6  Ben.  284;  16  Fed. 

Cas.  659),  314. 
In  Mansfield,  re  (6  N.  B.  R.  388;  16 

Fed.  Cas.  660),  202. 
In  Many,  re  (17  N.  B.  R.  514;  16  Fed. 

Cas.  676),  297. 
In  Marcer.  re  (6  N.  B.  R.  351;  16  Fed. 

Cas.  699),  250. 
In  Marks,  re  (2  N.  B.  R.  575;  16  Fed. 

Cnfi.  764),  46. 
In  Marsh,  re  (6  Law  Rep.  67;  16  Fed. 

Cas.  790),  189. 
In   Marsh,   re   (19  N.   B.   R.   297;   16 

Fed.  Cas.  792),  144. 


n  Marshal,  re  (3  Fed.  Rep.  220),  148. 
n  Marshall,  re  (1  Low.  462j  16  Fed. 

Cas.  827),  139. 
n  Marston,  re  (5  Ben.  313;  16  Fed. 

Cas.  857),  131. 
n  Marter,   re  (12  N.  B.   R.   185;  16 

Fed.  Cas.  857),  367. 
n  Martin,  re  (6  Ben.  20;  16  Fed.  Cas. 

875),  28. 
n  Martin,  re  (2  Hughes,  418;  16  Fed. 

Cas.  880),  89. 
n  Martin,  re  (2  N.  B.  R.  548;  16  Fed. 

Cas.  881),  127. 
u  Marvin,  re  (1  Dill.  178;  16  Fed.  C-s. 

927),  61. 
n  Marwick,  re  (8  Law  Rep.  169;  16 

Fed.  Cas.  929  [1845]),  81. 
n  Marx,  re  (16  Fed.  Cas.  763),  69. 
n  Mass.   Brick   Co..  re   (2  Low.  58; 

16  Fed.  Cas.  1067),  255. 
n  Mastbaum,  re  (16  Fed.  Cas.  1080), 

89. 
n  Masterson,  re  (4  N.  a.  R.  553;  16 

Fed.  Cas.  1084),  51. 
n  Matot,  re  (16  N.  B.  R.  485;  16  Fed. 

Cas.  1109),  57,  253. 
u  Matthers,  re  (17  N.  B.  R.  2;25;  16 

Fed.  Cas.  1093),  118. 
a  Mauer,  re  (5  Saw.  66;  16  Fed.  Cas. 

1162),  160. 
n  Mauson,  re   (2  Ben.  332;  16  Fed. 

Cas.  1192),  131. 
n  Mauson.  re  (2  Ben.  412;  16  Fed. 

Cas.  1193),  142. 
n  Mauson,  re  (1  N.  B.  R.  271;  16  Fed. 

Cas.  1194),  135. 
n  Mav,  re  (7  Ben.  238;  16  Fed.  Cas. 

1205),  294. 
n  Mav,  re  (16  Fed.  Cas.  1207),  87. 
n  May,  re  (17  N.  B.  R.  192;  16  Fed. 

Cas.  1208),  236. 
n  May,  re  (19  N.  B.  R.  101;  16  Fed. 

Cas.  1209),  297. 
n  Maybin,  re  (15  N.  B.  R.  468;  16 

Fed.  Cas.  121).  153. 
n  Maybin,  re  (15  N.  B.  R.  468;  16 

Fed.  Cns.  1221),  230,  292,  300. 
n  I\rayo,  re  (4  Hughes,  384;  16  Fed. 

Cas.  1262).  50. 
n  Mead,  re  (.58  Fed.  Rep.  312),  402. 
n  Mead,  re  (28  Log.  Int.  277;  16  Fed. 

Cas.  1274),  303. 
n  MiJad,  re  (19  N.  B.  R.  81;  16  Fed. 

Cas.  1277),  240. 
n  Meade,  re  (It)  N.  B.  R.  335;  16  Fed. 

Cus.  1281).  149. 
n  Mealy,  re  (2  N.  B.  R.  128;  16  Fed. 

Cas.  1302),  174. 
n  Mebane.  re  (3  N.  B.  R.  347;  16  Fed. 

Cas.  1304),  340,  400. 


Table  of  Cases  Cited. 


XXXI 


In  Melick,  re  (4  N.  B.  E.  97;  16  Fed. 

Cas.  1328),  70. 
In  Mellor,  re  (10  Ben.  58;  16  Fed.  Cas. 

1331),  309. 
In  Mellor,  re  (16  Fed.  Cas.  1331),  391.. 
In  Melvin,  re  (17  N.   B.   R.  543;  16 

Fed.  Cas.  1338),  89. 
In   Mendelsohn,   re   (3   Saw.   342;   17 

Fed.  Cas.  4),  162. 
In  Mendenhall,  re  (9  N.  B.  R.  285;  17 

Fed.  Cas.  8),  181. 
In  Mendenhall,  re  (9  N.  B.  R.  380;  16 

Fed.  Cas.  9),  254. 
In  Mendenhall,  re  (9  N.  B.  R.  497;  17 

Fed.  Cas.  10),  69. 
In  Merchants'  Ins.  Co.,  re  (3  Biss.  162; 

17  Fed.  Cas.  41),  54,  60,  64. 
In   Merchants'   Ins.   Co.,    re   (6   Biss. 

252;  17  Fed.  Cas.  43),  220. 
In  Merrell,  re  (19  Fed.  Rep.  874),  291. 
In  Merrick,  re  (7  N.   B.   R.  459;   17 

Fed.  Cas.  75),  230. 
In  Merrlfield,  re  (3  N.  B.  R.  98;  17 

Fed.  Cas.  80),  312. 
In  Merrill,  re   (9  Ben.   165;   17  Fed. 

Cas.  80),  229. 
In   Merrill,    re    (12   Blatchf.    221;   17 

Fed.  Cas.  82),  69. 
In  Merriman,  re  (18  N.  B.  R.  411;  17 

Fed.  Cas.  ]31),  287. 
In  Metcalf,  re  (2  Ben.  78;  17  Fed.  Cas. 

172),  106. 
In  Metz,  re  (6  Ben.  571;  17  Fed.  Cas. 

229),  312. 
In  Metzger,  re  (2  N.   B.   R.  355;  17 

Fed.  Cas.  231),  216. 
In  Metzler,   re  (1  Ben.  356;  17  Fed. 

Cas.  240),  44. 
In  Meyer,  re  (2  N.  B.  B.  422;  17  Fed. 

Cas.  244),  405. 
In  Meyers,  re  <2  Ben.  424;   17  Fed. 

Cas.  249),  106. 
In  Migel,  re  (2  N.  B.  R.  481;  17  Fed. 

Cas.  279),  103. 
In  Miller,  re  (1  N.  B.  R.  410;  17  Fed. 

Cas.  295),  254. 
In  Miller,  re  (19  N.  B.  R.  78;  17  Fed. 

Cas.  297),  238. 
In  Miller,  re  (1  N.  Y.  T.eg.  Obs.  180; 

17  Fed.  Cas.  298),  318. 
In  Miller,   re   (6  Biss.  30;  Fed.   Cas. 

No.  9551),  40. 
In  Miller,  re  (6  Biss.  30;  17  Fed.  Cas. 

293),  43,  45. 
In  Mills,  re  (7  Ben.  452;  17  Fed.  Cas. 

393)    245 
In  Mills,  re  (11  N.  B.  R.  74;  17  Fed. 

Cas.  394),  75. 
In  Mills,  re  (17  N.  B.  R.  472;  17  Fed. 

Cas.  397),  228. 


In  Minor,  re  (11  Fed.  Rep.  406),  77. 
In  Mitchell,  re  (3  N.   B.   R.  441;   17 

Fed.  Cas.  491),  67. 
In  Mitchell,  re  (8  N.  B.  R.  47;  17  Fed. 

Cas.  492),  352. 
In  Mitchell,  re  (16  N.  B.  R.  535;  17 

Fed.  Cas.  493),  219. 
In    Mitteldorfer,    re    (Chase,    276;    17 

Fed.  Cas.  534),  218,  226. 
In    Mitteldorfer,    re    (Chase,    288;    17 

Fed.  Cas.  537),  315. 
In  Moies,  re  (2  Low.  352;  18  Fed.  Cas. 

464),  173. 
In  MoUer,  re  (8  Ben.  526;  17  Fed.  Cas. 

576;  14  Blatchf.  207;  17  Fed.  Cas. 

579),  236,  309,  401. 
In   Montgomery,   re   (3   Ben.  364;   17 

Fed.  Cas.  617),  313. 
In   Montgomery,   re   (3  Ben.   567;   17 

Fed.  Cas.  618),  75. 
In   Montgomery,   re   (3   Ben.   565;   17 

Fed.  Cas.  619),  239. 
In   Montgomery,   re   (3   Ben.   566;   17 

Fed.  Cas.  620),  232. 
In   Montgomery,   re   (3  Ben.   567;   17 

Fed.  Cas.  621),  295. 
In  Montgomery,  re  (3  N.  B.  R.  430;  17 

Fed.  Cas.  622),  231. 
In   Mooney,   re    (14   Blatchf.   204;   17 

Fed.  Cas.  659),  191. 
In  Moore,  re  (2  Ben.  325;  17  Fed.  Cas. 

661),  134. 
In  Moore,  re  (5  Biss.  79;  17  Fed.  Cas. 

661),  71. 
In  Moore,  re  (1  Hask.  134;  17  Fed. 

Cas.  663),  140. 
In  Morford,  re  (Ben.  264;  17  Fed.  Cas. 

745),  98. 
In  Morgan,   re  (8  Ben.  186;  17  Fed. 

Cas.  746),  229. 
In  Morgan,  re  (8  Ben.  232;  17  Fed. 

Cas.  746),  242. 
In  Morganthal.  re  (1  N.  B.  R.  402;  17 

Fed.  Cas.  769),  98. 
In  Morrell,  re  (1  Hask.  542;  17  Fed. 

Cas.  779),  132. 
In  Morrell,  re  (2  Saw.  356:  17  Fed. 

Cas.  781),  236,  329. 
In   Morris,    re   (Crabbe,    70;    17   Fed. 

Rep.  785  [1837]),  50. 
In  Morris,  re  (19  N.  B.  R.  Ill;  17  Fed. 

Cas.  785),  140. 
In  Morrison,  re  (10  N.  B.  R.  105;  17 

Fed.  Cas.  831),  236,  345. 
In  Morse,  re  (17  Blatchf.  72;  17  Fed. 

Cas.  846),  159,  249. 
In  Morse,  re  (7  N.  B.  R.  56;  17  Fed. 

Cas.  848),  211. 
In  Morse,  re  (11  N.  B.  R.  482;  17  Fed. 

Cas.  850),  295,  290. 


xxxn 


Table  of  Cases  Cited. 


In  Morse,  re  (13  N.  B.  R.  S76;  17  Fed. 

Cas.  852),  74,  75. 
In  Moseley,   re   (8  N.   B.   R.  208;  17 

Fed.  Cas.  886),  82. 
In  Moses,  re  (1  Fed.  Rep.  845),  398. 
In  Moses,  re  (6  N.  B.  R.  181;  17  Fed. 

Cas.  889),  32. 
In  Mott,  re  (6  Fed.  Rep.  685),  51,  400. 
In  Mott,  re  (17  Fed.  Cas.  901),  404. 
In  Mott,  re  (17  Fed.  Cas.  902),  165, 

218 
In  Mott,  re  (17  Fed.  Cas.  903),  158. 
In  Moulton,  re  (17  Fed.  Cas.  917),  335. 
In  Muldaur,  re   (8  Ben.  65;  17  Fed. 

Cas.  958),  220. 
In  Muldaur,  re  (8  Ben.  127;  17  Fed. 

Cas.  959),  202. 
In   Muller,   re   (Deady,   513;   17   Fed. 

Cas.  971),  48.  158.  249.  382. 
In   Muller,   re   (Fed.   Cas.   No.   9912), 

410. 
In  Munger,  re  (4  N.  B.  R.  295;  17  Fed. 

Cas.  986),  56,  271. 
In  Munn,  re  (3  Biss.  442;  17  Fed.  Cas. 

989),  56,  81. 
In  Murdock,  re  (1  Low.  362;  17  Fed. 

Cas.  1010),  128,  139,  229. 
In  Murphy,   re   (10  N.   B.   R.  48;   17 

Fed.  Cas.  1030),  64. 
In  Murray,  re  (14  Blatchf.  43;  17  Fed. 

Cas.  1040),  191. 
In  Murray,  re  (1  Hask.  267;  17  Fed. 

Cas.  1041),  285. 
In   Murrin,   re   (2   Dill.   120;   17  Fed. 

Cas.  1062),  394. 
In  Mutual  B.  F.  S.  &  B.  S.  Bank,  re 

(2  Hughes,  374;  17  Fed.  Cas.  1075), 

319. 
In  Myers,  re  (2  Hughes,  230;  17  Fed. 

Cas.  1079),  366. 
In  Myrick,  re  (3  N.  B.  R.  153;  IT  Fed. 

Cas.  1130),  388. 
In  Myrick,  re  (3  N.  B.  R.  156;  17  Fed. 

Cas.  1131),  226,  232. 
In  National  Iron  Co.,  re  (8  N.  B.  R. 

422;  17  Fed.  Cas.  1222),  402. 
In  Neale,  re  (3  N.  B.  R.  177;  17  Fed. 

Cas.  1264),  406. 
In  Nebe,  re  (11  N.  B.  R.  289;  17  Fed. 

Cas.  1268),  229. 
In  Nebenzahl,  re  f9  Ben.  243;  17  Fed. 

Cas.  1269),  44; 
In  Needham,  re  (1  Low.  309;  17  Fed. 

Cas.  1275),  139. 
In   Needham,   re   (1   Chi.   Leg.   News, 

171;  17  Fed.  Cas.  1275),  233. 
In  Negley,  re  (20  Fed.  Rep.  499),  123. 
In  Neilson,   re   (7   N.   B.   R.   505;   17 

Fed.  Cas.  1301),  250. 


In  Nelson,   re   (9  Ben.   238;   17  Fed. 

Cas.  1312),  335. 
In  New  Amsterdam  Fire  Ins.  Co.,  re 

(6  Ben.  868;  18  Fed.  Cas.  34),  62. 
In  New  Brunswick  Carpet  Co.,  re  (4 

Fed.  Rep.  514),  231. 
In  New   Lamp   Chimney   Co.,   re   (18 

Fed.  Cas.  90),  313. 
In  New  York  Mail  Steamship  Co.,  re 

(1  Chi.  Leg.  News,  210;  18  Fed. 

Cas.  156),  314. 
In  New  York  Mail  Steamship  Co.,  re 

(2  N.   B.   R.   554;   18   Fed.   Cas. 

157  [1869]),  315. 
In  Newcomb,  re  (32  Fed.  Rep.  826), 

109,  217,  283. 
In  Newcomer,   re   (18  Fed.   Cas.  48). 

240. 
In  Newland,  re  (7  Ben.  63;  18  Fed. 

Cas.  92),  388. 
In   Newlin,   re   (6  Ben.   342;  18  Fed. 

Cas.  91  [1873]),  237. 
In  Nichols,  re  (1  Fed.  Rep.  842),  50. 
In  Nickodemus,  re  (2  Chi.  Leg.  News, 

49;  18  Fed.  Cas.  222),  247,  286. 
In  Nims,  re  (16  Blatchf.  439;  18  Fed. 

Cas.  255),  77. 
In  Noakes,  re  (Bankr.  Ct.  Rep.  162; 

18  Fed.  Cas.  281),  215. 
In  Noble,  re  (3  Ben.  332;  18  Fed.  Cas. 

282  [1869]),  207. 
In  Noesen,  re  (7  Chi.  Leg.  News,  419; 

18  Fed.  Cas.  294  [1875]),  299.' 
In  Noies,  re  (18  Fed.  Cas.  465  [1872]), 

303,  305. 
In  Nolan,  re  (8  Ben.  559;  18  Fed.  Cas. 

296),  38. 
In    Noonan,    re    (18    Fed.     Cas.    297 

[1869]),  141. 
In  Noonan,  re  (5  Chi.  Leg.  News,  557; 

18  Fed.  Cas.  298).  37,  67,  69. 
In    Norris,     re    (18    Fed.     Cas.    317 

[1876]),  233. 
In  North,  re  (2  Low.  487;  12  Fed.  Cas. 

653),  378,  379. 
In    Norton,    re    (18    Fed.    Cas.    416 

[1873]),  210. 
In  Noyes,  re  (6  N.  B.  R.  277;  18  Fed. 

Cas.  465),  284. 
In  Numan,  re  (1  Chi.  Leg.  News,  123; 

18  Fed.  Cas.  96),  145. 
In  O'Bannon,  re  (18  Fed.  Cas.  516;  2 

N.  B.  R.  15  [1868]),  98. 
In  O'Brien,  re  (6  Int.  Rev.  Rec.  182; 

18  Fed.  Cas.  ,521  [1873]),  190. 
In  O'Dowd,   re  (8  N.   B.   R.  451;  18 

Fed.  Cas.  593  [1873]).  387,  394. 
In  O'Fallon,  re  (2  Dill.  548;  18  Fed. 

Cas.  600  [1873]),  404. 


Table  of  Cases  Cited. 


xxxiu 


In  O'Farrell,  re  (2  N.  B.  R..484;  18 

Fed.  Cas.  601  [1869]),  100. 
In  O'HaUaran,  re  (8  Ben.  128;  18  Fed. 

Cas.  620  [1875]),  165. 
In  O'Hara,  re  (Am.  Law  Reg.  (N.  S.) 

113;  18  Fed.  Cas.  622),  314. 
In  O'Kell,  re  (2  Ben.  144;  18  Fed.  Cas. 

632  [1868]),  174. 
In  O'Kell,  re  (2  N.  B.  R.  105;  18  Fed. 

Cas.  633  [1868]),  132. 
In  O'Mara,  re  (4  Biss.  506;  18  Fed. 

Cas.  690),  37. 
In  O'Nell,   re   (14  N.   B.   B.   210;   18 

Fed.  Cas.  715  [1876]),  118. 
In  Odell,  re  (16  N.  B.  R.  501;  18  Fed. 

Cas.  575),  116. 
In  Oehninger,  re  (8  Ben.  487;  18  Fed. 

Cas.  594),  39. 
In  Oplousa  &  G.  W.  R.  Co.,  re  (3  N. 

B.  R.  31;  18  Fed.  Cas.  751  [1869]), 

64,  271. 
In  Orcutt,  re  (4  N.  B.  R.  538  [Quarto 

176] ;  18  Fed.  Cas.  757),  188. 
In  Ordway,  re  (19  N.  B.  R.  171;  18 

Fed.  Cas.  760),  142. 
In  Oregon  Bulletin,  Printing  &  Pub. 

Co.,  re  (13  N.  B.  R.  199;  8  Chi. 

Leg.  News,  81;  18  Fed.  Cas.  770 

[1875]),  25a 
In  Oregon  Bulletin  Printing  &  Pub. 

Co.,  re  (13  N.  B.  R.  506;  18  Fed. 

Cas.  773  [1876]),  65,  98,  166,  271, 

388. 
In  Oregon  Bulletin  Printing  &  Pub. 

Co.,  re  (8  Chi.  Leg.  News,  143;  18 

Fed.  Cas.  780),  165,  190. 
In  Oregon  Iron  Works,  re  (4  Saw.  169; 

18  Fed.  Cas.  791),  407. 
In  Orem  v.  Harley,  re  (3  N.  B.  R.  263; 

18  Fed.  Cas.  799  [1869]j,  158. 
In  Orne,  re  (12  Fed.  Rep.  779),  285. 
In  Orne,  re  (1  N.  B.  R.  79;  18  Fed. 

Cas.  821  [1867]),  301,  134. 
In  Orne,  re  (1  N.  B.  R.  79;  18  Fed. 

Cas.  823  [1867]),  97,  201. 
In  Osage  Valley  v.  S.  K.  R.  Co.,  re  (9 

N.  B.  R.  281;  18  Fed.  Cas.  841), 

248 
In  Ouimette,  re  (3  N.  B.  R.  566:  18 

Fed.  Cas.  913  [1870]),  159,  247. 
In  OverhofEer,  re  (17  N.  B.  R.  546;  18 

Fed.  Cas.  520),  305. 
In  Packard,  re  (1  Low.  523;  18  Fed. 

Cas.  957  [1871]),  56. 
In  Paddock,  re  (6  N.  B.  R.  132;  18 

Fed.  Cas.  973  [1872]),  292. 
In  Paddock,  re  (6  N.  B.  R.  396;  18 

Fed.  Cas.  975),  180. 
In  Palmer,  re  (13  Fed.  Rep.  870),  405. 

iii 


In  Palmer,  re  (3  N.  B.  R.  283;  18  Fed 

Cas.  1018  [1869]),  264. 
In  Palmer,  re  (18  Fed.  Cas.  1019),  128. 
In  Parham,  re  (17  N.  B.  R.  300;  18 

Fed.  Cas.  1094  [1878]),  239. 
In  Parker,  re  (11  Fed.  Rep.  397),  265. 
In   Parker,   re  (4  Biss.  501;  IS  Fed. 

Cas.  1110),  142. 
In  Parker,  re  (1  Pa.  L.  J.  370;  18  Fed. 

Cas.  1111),  132. 
In  Parker,  re  (10  N.  B.  R.  82;  18  Fed. 

Cas.  1184  [1874]),  231,  226. 
In  Patterson,  re  (1  N.  B.  R.  125;  18 

Fed.  Cas.  1315  [1867]),  174,  384. 
In  Patterson,  re  (1  N.  B.  R.  152;  18 

Fed.  Cas.  1319  [1867]),  173. 
In  Patterson,  re  (1  N.  B.  R.  147;  18 

Fed.  Cas.  1321  [1867]),  201. 
In  Paul,  re  (16  N.  B.  R.  476;  21  Fed. 

Cas.  30  [1877]),  288. 
In  Paulson,  re  (19  Fed.  Cas.  4),  315. 
In  Peabody,  re  (16  N.  B.  R.  243;  19 

Fed.  Cas.  35),  92,  245,  305. 
In  Pearce,  re  (2  N.  Y.  Leg.  Obs.  267; 

19  Fed.  Cas.  50),  136,  139. 
In  Pearson,  re  (2  N.   B.  R.  477;  IS 

Fed.  Cas.  65),  210. 
In  Pease,  re  (29  Fed.  Rep.  593).  ai3. 
In  Pease,  re  (6  N.  B.  R.  173;  19  Fed. 

Cas.  67),  287. 
In  Pease,  re  (13  N.  B.  R.  168;  19  Fed. 

Cas.  68),  75. 
In  Pebear,   re  (17  N.  B.   R.   461;  19 

Fed.  Cas.  405),  316. 
In  Peck,  re  (9  Ben.  169;  19  Fed.  Cas. 

72),  330. 
In  Peck,  re  (3  N.  B.  R.  757;  19  Fed. 

Cas.  74),  166. 
In  Peebles,  re  (2  Hughes,  394;  19  Fed. 

Cas.  94),  84.  3-52. 
In  Pegues,  re  (3  N.  B.  R.  80;  19  Fed. 

Cas.  121),  304. 
In  Peltasohn,  re  (4  Dill.  107;  19  Fed. 

Cas.  126),  51. 
In  Penn,  re  (4  Ben.  99;  19  Fed.  Cas. 

151),  51. 
In  Penn,  re  (5  Ben.  89;  19  Fed.  Cas. 

151),  29. 
In  Penn,  re  (5  Ben.  500;  19  Fed.  Cas. 

155),  104. 
In  Penn,  re  (5  N.  B.  R.  288;  19  Fed. 

Cas.  155),  139. 
In  Pensacola  Lumber  Co.,  re  (8  Ben. 

171;  19  Fed.  Cas.  197),  31. 
In  People's  Mail  Steamship  Co.,  re  (3 

Ben.  226;  19  Fed.  Cas.  211),  107. 
In  People's   Safe  Deposit  &  Savings 

Inst,  ro  (10  Ben.  38;  19  Fed.  Cas. 

212),  287. 


XXXIT 


Table  ov  Cases  Cited. 


In  Perdue,  re  (2  N.  B.  R.  IBS;  19  Fed. 

Cas.  220),  352. 
In  Perkins,  re  (6  Biss.  185;  19  Fed. 

Oas.  237),  302. 
In  Perley,  re  (4  N.  Y.  Leg.  Obs.  1254; 

19  Fed.  Oas.  255),  133,  406. 
In  Perrin,  re  (7  N.  B.  R.  283;  19  Fed. 

Cas.  261),  322,  325. 
In  Perry,  re  (1  N.  B.  R.  220;  19  Fed. 

Cas.  263),  96,  211,  245. 
In  Perry,  re  (19  Fed.  Cas.  264),  144, 

264. 
In  Petrie,  re  (5  Ben.  110;  19  Fed.  Cas. 

383),  345. 
In  Pettis,  re  (2  N.  B.  R.  44;  19  Fed. 

Cas.  395),  102. 
In  Pfafe,  re  (7  Ben.  61;  19  Fed.  Cas. 

414),  223. 
In  Pfromm,   re   (8  N.  B.  R.  357;  19 

Fed.  Cas.  415),  207. 
In  Plielp,  re  (1  N.  B.  B.  525;  19  Fed. 

Cas.  436),  73,  208. 
In  Plielps,  re  (9  Ben.  286;  19  Fed.  Cas. 

435),  297. 
In   Philadelpliia   Axle   Works,   re   (19 

Fed.  Cas.  494),  250. 
In  Picliton,   re  (2  Dill.  548;  19  Fed. 

Cas.  620),  188. 
In  Pierce,  re  (7  Biss.  426;  19  Fed.  Cas. 

627),  388. 
In  Pierce,  re  (2  Low.  .543;  19  Fed.  Cas. 

629),  327,  343,  406. 
In  Pierce,  re  (3  N.  B.  R.  258;  19  Fed. 

Cas.  630),  142,  365. 
In  Pierson,  re   (10  N.  B.   R.  107;  19 

■Fed.  Cas.  661),  55,  142. 
In  Pierson,  re  (10  N.  B.  R.  193;  19 

Fed.  Cas.  668).  135,  161. 
In  Pintard,  re  (19  Fed.  Cas.  095),  395. 
In  Pioneer  Paper  Co.,  re  (7  N.  B.  R. 

250;  19  Fed.  Cas.  715),  202. 
In  Pitt,  re  (8  Ben.  389;  19  Fed.  Cas. 

745),  68. 
In  Pittock.  re  (2  Saw.  416;  19  Fed. 

Cas.  745).  301. 
In  Pitts,  re  (8  Fed.  Rep.  263),  138. 
In  Pitts,  re  (19  N.  B.  R.  63;  19  Fed. 

Cas.  750),  152. 
In  Place,  re  (8  Blatchf.  302;  9  id.  369; 

19  Fed.  Cas.  790,  791),  242. 
In  Plimpton,  re  (4  Law  Rep.  488";  IS 

Fed.  Cas.  874),  97. 
In  Plumb,  re  (9  Ben.  279;  19  Fed.  Cas. 

886),  70,  80. 
In  Polem.^n.  re  (5  Biss.  526;  19  Fed. 

Cas.  918),  85. 
In  Pomeroy,   re   (2  N.   B.   R.   14;  19 

Fed.  Cas.  956),  96. 
In  Port  Huron  Dock  Co.,  re  (14  N.  B. 

R.  243;  19  Fed.  Cas.  1080),  181. 


In  Portington,  re  (8  Ben.  173;  39  Fed. 

Cas.  1082),  204. 
In  Portsmouth  Sav.  Fund  Soc,  re  (2 

Hughes,  239;  19  Fed.  Cas.  1087), 

314. 
In  Potteiger,  re  (19  Fed.  Cas.  1132), 

127. 
In  Powell,  re  (2  N.  B.  B.  45;  19  Fed 

Cas.  1211),  208,  243. 
In  Prankard,  re  (1  N.  B.  R.  297;  19 

Fed.  Cas.  1242),  28. 
In  Pratt,  re  (1  Flipp,  353;  19  Fed.  Cas. 

1247),  86. 
In  Pratt,  re  (2  Low.  96;  19  Fed.  Cas. 

1248),  100. 
In  Preseott,  re  (5  Biss.  523;  19  Fed. 

Cas.  1286),  300. 
In  Preston,   re   (3  N.   B.   R.   103;  19 

Fed.  Cas.  1289),  97. 
In   Preston,   re   (5  N.   B.   R.   293;  19 

Fed.  Cas.  1289),  286. 
In  Preston,  re  (6  N.  B.  R.  545;  19  Fed. 

Cas.  1291),  46,  89. 
In  Price,  re  (3  Dill.  514,  n.;  19  Fed. 

Cas.  1312),  250. 
In  Price,  re  (4  N.  B.  R.  406;  19  Fed. 

Cas.  1313),  211. 
In  Price,  re  (6  N.  B.  R.  400;  19  Fed. 

Cas.  1314),  91. 
In  Price,  re  (8  N.  B.  B.  514;  19  Fed. 

Cas.  1314),  165. 
In  Price,  re  (1  N.  J.  L.  J.  228;  19  Fed. 

Cas.  1316),  3.33. 
In  Princeton,  re  (2  Biss.  116;  19  Fed. 

Cas.  1314),  240. 
In  Proby,  re  (17  N.  B.  R.  175;  20  Fed. 

Cas.  1),  177. 
In   Pryor,    re    (4   Biss.   262;   20   Fed. 

Cas.  28)-,  89,  406. 
In  Piilsifer,  re  (14  Fed.  Rep.  247),  302. 
In  Piilver,  re  (1  Ben.  381;  20  Fed.  Cas. 

54)    159. 
In  Pup'ke.  re  (1  Ben.  342;  20  Fed.  Cas. 

59),  170. 
In  Purcell,  re   (18  N.   B.   R.  447;  20 

Fed.  Cas.  61),  207. 
In  Purcell,   re   (2  Ben.   485;   'Ai  Fed. 

Cas.  59),  238. 
In  Purcell,  re  (18  N.  B.  R.  447;  20. 

Fed.  Cas.  61).  378,  379. 
In  Purvis,  re  (1  N.  B.  R.  163;  20  Fed. 

Cas.  74),  207. 
In  Pusey,  re  (7  N.  B.  R.  45;  20  Fed. 

Cas.  76),  394. 
In  Pusey.  re  (0  N.  B.  R.  40;  20  Fed. 

Cas.  75),  394. 
In  Ouinike.  re  (2  Biss.  354;  20  Fed. 

Cas.  142),  100. 
In  Radcliffe,  re  (1  N.  B.  R.  400;  20 

Fed.  Cas.  300),  98. 


Table  of  Cases  Cited. 


XXXV 


In  Rado,  re  (6  Biss.  230;  20  Fed.  Cas. 

153),  248. 
In   Radway,   re    (3   Hughes,    009;   20 

Fed.  Cas.  154),  87. 
In  Raffauf,  re  (6  Biss.  150;  20  Fed. 

Cas.  165),  167. 
In  Rainsford,  re  (5  N.  B.  R.  381;  20 

Fed.  Cas.  188),  150. 
In  Randall,  re  (Deady,  557;  20  Fed. 

Cas.  222),  58,  159,  267. 
In  Randall,   re   (1   Saw.   56;   20  Fed. 

Cas.  226),  242,  267. 
In  Rank,  re  (Crabbe,  493;  20  Fed.  Cas. 

273  [1842]),  47. 
In  Rathbone,  re  (3  Ben.  50;  20  Fed. 

Cas.  309),  388. 
In  Rathbone,  re  (1  N.  B.  R.  536;  20 

Fed.  Cas.  314),  138. 
In  Rathbone,  re  (2  Ben.  138;  20  Fed. 

Cas.  307),  131,  142. 
In  Ray,  re  (2  Ben.  53;  20  Fed.  CaiT. 

322)    299. 
In  Ray.'re  (Fed.  Cas.  No.  11589),  299. 
In  Raynor,  re  (11  Blatchf.  43;  20  Fed. 

Cas.  338),  159. 
laReakirt,  re  (7  N.  B.  R.  329;  20  Fed. 

Cas.  368),  178. 
In  Redmond,  re  (9  N.  B.  R.  408;  20 

Fed.  Cas.  400),  58. 
In  Reece,   re   (2  Bond,   359;   19  Fed. 

Cas.  402),  240. 
In  Reed,  re  (6  Biss.  250;  20  Fed.  Cas. 

408),  299. 
In  Reed,  re  (1  N.  B.  R.  1;  20  Fed.  Cas. 

416),  46. 
In  Reed,  re  (2  N.  B.  R.  9;  20  Fed. 

Cas.  417),  192. 
In  Reed,  re  (3  N.  Y.  Leg.  Obs.  262; 

20  Fed.  Cas.  417  [1844]),  142,  330. 
In  Reed,  re  (12  N.  B.  R.  390;  20  Fed. 

Cas.  417),  144. 
In  Relman,  re  (7  Ben.  455;  12  Blatchf. 

562;  20  Fed.  Cas.  490,  500),  115. 
In  Reis,  re  (3  Woods,  18;  20  Fed.  Cas. 

510),  343. 
In  Remsen,  re  (9  Ben.  260;  20  Fed. 

Cas.   531),   122. 
In  Rep.  Ins.  Co.,  re  (8  Biss.  452;  20 

Fed.  Cas.  544),  30. 
In  Rep.  Ins.  Co.,  re  (8  N.  B.  R.  197; 

20  Fed.  Cas.  548),  409. 
In  Rep.  Ins.  Co.,  re  (8  N.  B.  R.  317; 

20  Fed.  Cas.  552),  169. 
In  Reynolds,  re   (9  N.   B.   R.   50;  20 

Fed.  Cas.  612),  409. 
In  Reynolds,  re  (16  N.  B.  R.  158;  20 

Fed.  Cas.  615),  349. 


In  Reynolds,  ro  (10  N.  B.  R.  17G;  20 

Fed.  Cas.  618),  123. 
In  Rhodes,  re  (20  Fed.  Cas.  0.";L').  51. 
In  Rice,  re  (9  N.  B.  It.  373;  20  Fed. 

Cas.  654),  78. 
In  Richards,  re  (17  N.  B.  R.  562;  20 

Fed.  Cas.  692),  176. 
In  Richardson,  re  (2  Ben.  517;  20  Fed. 

Cas.  69G),  35. 
In  Richardson,  re  (7  Ben.  155;  20  Fed. 

Cas.  697),  303. 
In  Richardson,  re  (1  N.  B.  R.  114;  20 

Fed.  Cas.  697),  91. 
In   Richardson,   re   (2  Story,   571;   20 

Fed.  Cas.  699),  50. 
In  Richardson,  re  (2  Ben.  517;  Fed. 

Cas.  No.  11774),  413. 
In  Richmond,  re  (18  N.  B.  R.  362;  20 

Fed.  Cas.  736),  118. 
In  Richter's  Estate,  re  (1  Dill.  544;  20 

Fed.  Cas.  748),  239,  241. 
In  Riker,  re  (18  N.  B.  R.  393;  20  Fed. 

Cas.  795),  247. 
In  Riorden,  re  (14  N.  B.  R.  332;  20: 

Fed.  Cas.  820),  02,  240. 
In  Roberts,  re  (8  Biss.  426;  20  Fed. 

Cas.  878),  164. 
In  Robinson,  re  (1  Ben.  270;  20  Fed. 

Cas.  973),  244. 
In  Robinson,  re  (2  Ben.  145;  20  Fed.  ■ 

Cas.  974),  204. 
In  Robinson,   re   (6  Blatchf.   253;   20 

Fed.  Cas.  978),  107,  191. 
In  Robinson,  re  (8  Ben.  406;  20  Fed. 

Cas.  978),  242. 
In  Robinson,  re  (43  How.  Pr.  25;  20 

Fed.  Cas.  980),  203. 
In  Robinson,  re  (2  Low.  326;  20  Fed. 

Cas.  981),  230. 
In  Robinson,  re  (2  N;  B.  R.  516;  20 

Fed.  Cas.  982),  176. 
In  Robinson,   re   (3  N.   B.  R.   10;  20 

Fed.  Cas.  982),  133. 
In  Robinson,  re  (20  Fed.  Cas.  983),  93. 
In  Rockford,  R.  I.  &  St.  L.   R.  Co., 

re  (1  Low.  345;  20  Fed.  Cas.  1071), 

394. 
In  Roddin,   re   (6  Biss.  377;   20  Fed. 

Cas.  1084),  79. 
In  Rodger,   re   (18  N.  B.  B.  2.j2;  20 

Fed.  Cas.  1085),  122. 
In  Rodger,  re  (18  N.  B.   R.  381;  20 

Fed.  Cas.  1088),  122. 
In  Rogers,   re  (1   Low.  423;   20  Fed. 

Cas.  1104),  142. 
In  Rogers,  re  (2  N.  B.  R.  397;  20  Fed. 

Cas.  1105),  56. 


XXXVl 


Table  of  Cases  Cited. 


In  Rogers,  re  (10  N.  B.  R.  444;  20 

Fed.  Cas.  1105),  164. 
In  Rooney,  re  (6  N.  B.  R.  163;  20  Fed. 

Cas.  1153),  182,  267. 
In  Rose,  re  (20  Fed.  Cas.  1176),  310. 
In  Roseberry,  re  (8  Biss.  112;  20  Fed. 

Cas.  1892),  346. 
In  Rosenberg,  re  (3  Ben.  14;  20  Fed. 

Cas.  1194),  37,'  286. 
In  Rosenberg,  re  (3  Ben.  366;  20  Fed. 

Cas.  1196),  323. 
In  Rosenberg,  re  (3  N.  B.  R.  73;  20 

Fed.  Cas.  1197),  315. 
In  Rosenfeld,  re  (2  N.  B.  R.  116;  20 

Fed.  Cas.  1198),  54,  130,  141. 
In  Rosenfield,  re  (1  N.  B.  R.  575;  20 

Fed.  Cas.  1202),  130,  142.  173. 
In  Rosenfield,  re  (1  N.  B.  B.  319;  20 

Fed.  Cas.  1205),  175,  201. 
In  Rosenfields,  re  (11  N.  B.  B.  86;  20 

Fed.  Cas.  1209),  150,  158,  253,  254. 
In  Rowe,  re  (18  N.  B.  B.  429;  20  Fed. 

Cas.  1280),  213. 
In  Rowell,  re  (2  N.  Y.  Leg.  Obs.  285; 

20  Fed.  Cas.  1288),  256,  271,  304. 
In   Rowland,   re  (2  Hughes,  210;   20 

Fed.  Cas.  1291),  403. 
In  Buddell,  re  (2  Low.  124;  20  Fed. 

Cas.  1305),  286. 
In  Ruehle,  re  (2  N.  B.  R.  577;  20  Fed. 

Cas.  1311),  234. 
In  Rundle,  re  (2  N.  B.  R.  113;  1  Chi. 

Leg.    News,    30;    21   Fed.   Cas.   5 

[1868]),  107,  286. 
In  Runzi,  re  (3  Fed.  Rep.  790),  3S2. 
In  Rupp,  re  (4  N.  B.  R.  95;  21  Fed. 

Cas.  215  [1870]),  84. 
In  Rust,  re  (1  N.  Y.  Leg.  Obs.  326;  21 

Fed.  Cas.  91  [1843]),  341,  3«4. 
In  Ryan,  re  (6  N.  B.  R.  235:  21  Fed. 

Cas.  104  [1872]),  217,  400.       • 
In  Ryan,  re  (5  Leg.  Gaz.  263;  21  Fed. 

Cas.  105),  57,  63. 
In  Sabin,  re  (9  N.  B.  R.  383;  21  Fed. 

Cas.  119  [1874]),  326. 
In  Sabin,  re  (12  N.  B.  R.  142;  21  Fed. 

Cas.  120  [1875]),  346. 
In  Sabin,  re  (18  N.  B.  R.  154;  21  Fed. 

Cas.  120  [1878]),  28. 
In  Safe  Deposit  Inst.,  re  (7  N.  B.  R. 

392;  21  Fed.  Cas.  139  [1872]),  38. 
In   Salkey,   re   (11   N.   B.   R.  423;  21 

Fed.  Cas.  235  [1875] ;  11  N.  B.  R. 

516;  21  Fed.  Cas.  239  [1875]),  33. 
In  Salmon,  re  (2  N.  B.  R.  56;  21  Fed. 

Cas.  272   [1868]),  403. 
In  Sands  Ale  Bvowing  Co..  re  (6  N.  B. 

R.  101;  21   Fod.  Cns.  251   [1S72]), 

;i2.'?. 


In  Sandusky,  re  (17  N.  B.  B.  452;  21 

Fed.  Cas.  354),  332. 
In  Sargent,  re  (13  N.  B.  B.  144;  21 

Fed.  Cas.  495  [1875]),  160. 
In  Sargent,  re  (13  N.  B.  R.  144;  21 

Fed.  Cas.  495  [1875]),  252,  254. 
In  Sauls,  re  (5  Fed.  Rep.  715),  255. 
In  Saunders,  re  (13  N.  B.  R.  164;  21 

Fed.  Cas.  524  [1875]),  226,  261. 
In  SauthofE,  re  (14  N.  B.  R.  364;  21 

Fed.  Cas.  540  [1875]),  236. 
In  Sauthoff,  re  (10  N.  B.  R.  181;  21 

Fed.  Cas.  542  [1877]),  84. 
In  Savage,  re  (16  N.  B.  R.  368;  21  Fed. 

Cas.  545  [1878]),  297. 
In  Sawyer,  re  (2  Hask.  153;  21  Fed. 

Cas.  556  [1877]),  386.  • 

In  Sawyer,  re  (14  N.   B.   R.  341;  21 

Fed.  Cas.  559  [1876]),  124. 
In  Sawyer,  re  (16  N.  B.  B.  460;  21 

Fed.  Cas.  560   [1877]),  313 
In  Scammon,  re   (6  Chi.    Leg.   News. 

328;  21  Fed.    Cas.  617  [1874]),  a 

Biss.  145;  21  Fed.  Cas.  6l20  [1874]; 

id.  622  [1874]),  252. 
In  Schenck,  re  (5  N.  B.  B.  93;  21  Fed. 

Cas.  660  [1872]),  126. 
In  Schick,  re  (1  N.  B.  R.  177;  21  Fed. 

Cas.  689  [1807]).  60. 
In  Schnepf,  re  (1  N.  B.  R.  190;  21  Fed. 

Cas.  719  [1867]),  330,  336. 
In  Schuhardt,  re  (8  Ben.  585;  15  N.  B. 

R.  161;  21  Fed.  Cas.  739  [1876]). 

294. 
In   Schwab,   re   (2  N.   B.   R.   488;   l-'l 

Fed.  Cas.  763  [1869]),  304. 
In  Schwab,  re  (8  Ben.  353;  21  Fod. 

Cas.  764  [1876]K  173. 
In  Schwarz,  re  (14  Fed.  Rep.  787),  104. 
In  Scott,  re  (11  Fed.  Rep.  133),  62.  273. 
In  Scott,  re  (3  N.  B.  R.  742;  21  Fed. 

Cas.  798  [1869]),  347. 
In  Scott,  re  (15  N.  B.  R.  73:  21  Fed. 

Cas.  805  [1876]),  116,  117. 
In   Scovill,   re   (4  Cliff.   549;  21   Fed. 

Cas.  856  [1878]),  113,  384. 
In  Scrafford,  rp  (4  Dill.  .376;  21  Foil. 

Ca.s.  866   [1877]).  2.52. 
In  Scull,  re  (7  Bon.  371;  10  N.  B.  K. 

165;  21  Fed.  Cas.  890  [1874]),  Kil. 
In  Seabury,   re  (10  N.   B.   R.  90;   I't 

Fed.  Cas.  900  [1874]),  13L 
In  Seabury.  re  flO  N.  B.  B.  90;  21  Fed. 

Cas.  900  [1874]),  134. 
In  Seaman,  re  (19  N.  B.  R.  332;  121 

Fed.  Cas.  913  [1879]),  136. 
In   Spclipudorf,   rp  (2  Ben.  462;  1  N. 

F.    R.    626:    21    Fed.    Cas.    957 

[1.86S1).  1.'!6. 


Table  of  Cases  Cited. 


xxxvu 


In  Secor,  re  (18  Fed.  Rep.  319),  310. 
In  Seeley,  re  (19  N.  B.  R.  1;  21  Fed. 

Cas.  1007  [1879]),  267. 
In  Seymour,  re  (1  N.  B.  R.  29;  1  Ben. 

348  [1867]),  39,  102. 
In  Shannahan,  re  (6  Biss.  39;  21  Fed. 

Cas.  1153   [1874]),  72. 
In  Shaw,  re  (9  Fed.  Rep.  495),  125. 
In  Shpffer,  re  (4  Saw.  363;  17  N.  B.  B. 

369;  21  Fed.  Cns.  1225),  165. 
In  Shepard,  re  (1  N.  B.   R.  439;  21 

Fed.  Cas.  1250  [1868]),  128,  249. 
In   Shepard,    re   (3   Ben.   347;    N.    B. 

R.  172;  21  Fed.  Cas.  1256  [1869]), 

68. 
In  Shepard,  re  (Fed.  Cas.  No.  12753), 

299. 
In  Sherman,  re  (8  N.  B.  R.  353;  21 

Fed.  Cas.  1222  [1873]),  169. 
In  Sherwood,  re  (1  N.  B.  R.  344;  21 

Fed.  Cas.  1286  [1868]),  204. 
In  Shields,  re  (4  Dill.  588;  15  N.  B.  R. 

532    [1877];   21   Fed.   Cas.   1308), 

117. 
In  Shirley,  re  (9  Fed.  Rep.  901),  235. 
In  Shoenberger,  re  (4  Gin.  Law  Bui. 

965;   21  Fed.   Cas.   1334   [1879]), 

267. 
In  Shuey.  re  (9  N.  B.  B.  526;  22  Fed. 

Cas.  45),  37. 
In  Sidle,  re  (2  N.  B.  R.  220;  22  Fed. 

Cas.  102),  156. 
In  Signer,  re  (20  Fed.  Rep.  236),  138. 
In  Sime,  re  (2  Saw.  320;  22  Fed.  Cas. 

145),  191. 
In  Sime,  re  (3  Saw.  305;  22  Fed.  Cas. 

147),  292,  302. 
In  Simmons,  re  (W  N.  B.  R.  253;  22 

Fed.  Cas.  152),  160. 
In  Simms,  re  (9  Fed.  Rep.  440),  149. 
In  Simpson,  re  (2  N.  B.  R.  47;  22  Fed. 

Cas.  170),  38. 
In  Sims,  re  (16  N.  B.  R.  251;  22  Fed. 

Cas.  181),  367. 
In  Sims,  re  (19  N.  B.  R.  57;  22  Fed. 

Cas.  181),  368. 
In  Sinnett,  re  (4  Saw.  250;  22  Fed. 

Cas.  228),  85. 
In  Skelly.  re  (3  Biss.  260;  22  Fed.  Cas. 

272)   255  291. 
In  Skoll,  re  (16  N.  B.  R.  175;  22  Fed. 

Cas.  304),  409. 
In  Slevin,  re  (4  Dill.  131;  22  Fed.  Cas. 

323),  220. 
In  Sloan,  re  (13  Blatchf.  67;  22  Fed. 

Cas.  326),  127. 
In  Slocum,  re  (22  Fed.  Cas.  328),  79. 
In  Pm'th,  re  (9  Fed.  Rep.  592),  126, 

273. 


In  Smith,  re  (16  Fed.  Rep.  465),  71, 

143. 
In  Smith,  re  (2  Ben.  113;  22  Fed.  Cas. 

381),  210. 
In  Smith,  re  (2  Ben.  432;  22  Fed.  Cas. 

384),  333. 
In  Smith,  re  (6  Ben.  187;  22  Fed.  Cas. 

388),  291. 
In  Smith,  re  (9  Ben.  494;  22  Fed.  Cas. 

388),  154. 
In  Smith,  re  (8  Blatchf.  461;  22  Fed. 

Cas.  390),  128. 
In  Smith,  re  (2  Hughes,  284;  22  Fed. 

Cas.  391),  218. 
In  Smith,  re  (2  Hughes,  307;  22  Fed. 

Cas.  392),  88. 
In  Smith,  re  (1  N.  B.  R.  214;  22  Fed. 

Cas.  397),  29. 
In  Smith,  re  (2  N.  B.  R.  297;  22  Fed. 

Cas.  Sitl),  331. 
In  Smith,  re  (5  N.  B.  B.  20;  22  Fed. 

Cas.  398),  131. 
In  Smith,  re  (8  N.  B.  B.  401;  22  Fed. 

Cas.  399),  48. 
In  Smith,  re  (13  N.  B.  R.  500;  22  Fed. 

Cas.  402),  80. 
In   Smith,   re   (14   N.   B.    R.  432;   212 

Fed.  Cas.  403),  181. 
In  Smith,  re  (15  N.  B.  B.  97;  22  Fed. 

Cas.  403),  318. 
In  Smith,  re  (15  N.  B.  R.  459;  22  Fed. 

Cas.  405),  347. 
In  Smith,  re  (16  N.  B.  R.  113:  22  Fed. 

Cas.  408),  81. 
In  Smith,  re  (16  N.  B.  R.  399;  22  Fed. 

Cas.  409),  349. 
In  Smith,  re  (1  N.  T.  Leg.  Obs.  249; 

22  Fed.  Cas.  411  [1843]),  33. 
In  Smith,  re  (1  Woods,  478;  22  Fed. 

Cas.  412),  142. 
In  Smith,  re  (2  Woods,  458;  22  Fed. 

Cas.  413),  88. 
In  ,Snelling,  re  (19  N.  B.  R.  120;  22 

'Fed.  Cas.  719),  117,  120. 
In  Snow,  re  (1  N.  Y.  Leg.  Obs.  264; 

22  Fed.  Cas.  721  [1842]),  393. 
In  Sohoo,  re  (3  N.  B.  B.  215;  22  Fed. 

Cas.  780),  133. 
In  Solace,  re  (4  Ben.  143;  22  Fed.  Cas. 

782),  175. 
In    Soldiers'    Business,    Messenger    & 

Dispatch  Co.,  re  (3  Ben.  204;  22 

Fed.  Cas.  781),  323. 
In   Solomon,    re    (2   Hughes,   164;   22 

Fed.  Cas.  785),  88. 
In  Solomon,  re  (2  N.   B.   B.  285;  22 

Fed.  Cas.  787),  144. 
In  Son,  re  (2  N.  b.  R.  153;  22  Fed. 

Cas.  794),  130. 


XXXVIU 


Table  of  Cases  Cited. 


In  South  Boston  Iron  Co.  (4  Clifie.  343; 

22  Fed.  Cas.  812),     80,    117,    125, 

193,  229. 
In  South  Westei-n  Car  Co.,  re  (9  Biss. 

76;  22  Fed.  Cas.  833),  309. 
In  Souther,  re  (2  Low.  320;  22  Fed. 

Cas.  815),  302. 
In   Spades,   re   (6  Biss.  448;  22  Fed. 

Cas.  848),  117,  238. 
In  Spencer,  re  (18  N.  B.  R.  199;  22 

Fed.  Cas.  914),  117.  226,  245. 
In  Speyer,  re  (6  N.  B.  R.  255;  22  Fed. 

Cas.  928),  205. 
In  Staib,  re  (3  Fed.  Rep.  209),  113. 
In   Stansell,   re   (6  N.  B.   R.   183;   22 

Fed.  Cas.  1059),  247. 
In  Stansfield,  re  (4  Saw.  334;  22  Fed. 

Cas.  1061),  128,  243. 
In   Stanton,   re   (22  Fed.   Cas.   1064), 

286. 
In  Starr,  re  (56  Fed.  Rep.  142),  122. 
In   State   Ins.    Co.,    re   (16  Fed.    Rep. 

7.50),  285. 
In  Steadman,  re  (8  N.  B.  R.  310;  22 
,     Fed.  Cas.  1155),  48. 
In  Steele,  re  (7  Biss.  504;  22  Fed.  Cas. 

1190),  340. 
In   Steele,   re   (2  Flipp,   324;  22  Fed. 

Cas.  1202),  93, 
In  Stein,  re  (16  N.  B.  R.  569;  22  Fed. 

Cas.  1232),  241,  265. 
In  Stephens,  re  (3  Biss.  187;  2  Fed. 

Cas.  1275),  288,  328. 
In  Sterling,  re  (1  Fed.  Rep.  167),  295. 
In   Stetson,   re   (4  Ben.   147;  22  Fed. 

Cas.  1316),  244. 
In   Stevens,  re  (4  Ben.  513;  23  Fed. 

Cas.  1),  232,  259. 
In  Stevens,  re  (23  Fed.  Cas.  1),  407. 
In  Stevens,  re  (2  Biss.  373;  23  Fed. 

Cas.  2),  93,  342. 
In  Stevens,  re  (1  Saw.  397;  23  Fed. 

Cas.  4),  68. 
In  Stevenson,   re   (6  Fed.   Rep.   710), 

404. 
In  Stewart,  re  (21  Fed.  Rep.  398),  138. 
In   Stewart,   re   (1  N.   B.   R.   278;  23 

Fed.  Cas.  50),  234. 
In  Stewart,  re  (3  N.   B.   R.   108;   23 

Fed.  Cas.  51),  62. 
In  Stewart,  re  (13  N.  B.  R.  295;  23 

Fed.  Cas.  51),  91. 
In  Stillwell,  re  (2  N.  B.  R.  526;   23 

Fed.  Cas.  88),  210. 
In  Stillwell,  re  (7  N.  B.  R.  226;  23 

Fed.  Cas.  89),  207. 
In  Stockwell,  re  (9  Ben.  265;  23  Fed. 

Cas.  114),  333. 
In  Stokes,  re  (1  N.  B.  R.  489;  23  Fed. 

Cas.  134),  ElO. 


In  Stokes,  re  (2  N.  B.  R.  212;  23  Fed. 

Cas.  134),  130. 
In  Stowe,  re  (6  N.  B.  R.  429;  23  Fed. 

Cas.  199),  323. 
In  Stowell,  re  (24  Fed.  Rep.  468),  122. 
In  Stowers,  re  (1  Low.  528;  23  Fed. 

Cas.  209),  68. 
In  Strachan,  re  (3  Biss.  181;  23  Fed. 

Cas.  212),  198,  286. 
In  Strassberger,  re  (4  Woods,  557;  23 

Fed.  Cas.  224),  309. 
In  Strauss,  re  (2  N.  B.  R.  48;  23  Fed.. 

Cas.  231),  229. 
In  Strenz,  re  (8  Fed.  Rep.  311),  358. 
In  Stubbs,  re  (4  N.  B.  R.  376;  23  Fed. 

Cas.  274),  409. 
In  Sturgeon,  re  (1  N.  B.  R.  4lr8;  28 

Fed.  Cas.  307),  166. 
In   Sturges,   re   (8  Biss.   79;   23  Fed. 

Cas.  307),  274. 
In  Stuyvesant  Bank,  re  (5  Ben.  566; 

23  Fed.  Cas.  339),  209. 
In  Stuyvesant  Bank,  re  (6  Ben.  33;  23 

Fed.  Cas.  340),  180. 
In  Summers,   re   (3  N.  B.   R.  84;  23 

Fed.  Cas.  379),  87. 
In  Sumner,  re  (10  Ben.  34;  23  Fed. 

Cas.  382),  138. 
In  Sutherland,  re  (2  Biss.  405;  23  Fed. 

Cas.  452),  193. 
In  Sutherland,  re  (6  Biss.  520;  23  Fed. 

Cas.  453),  393. 
In    Sutherland,    re    (Deady,    .344;    23 

Fed.  Cas.  454),  62,  158. 
In  Sutherland,  re  (Deady,  416;  23  Fed. 

Cas.  456),  294. 
In  Sutherland,  re  (Deady,  473;  23  Fed. 

Cas.  457),  133,  135. 
In  Svenson,   re   (9  Biss.   69;   23  Fed. 

Cas.  480),  126,  142. 
In  Swearinger,  re  (5  Saw.  52;  23  Fed. 

Cas.  527),  86. 
In  Sweet,  re  (9  N.  B.  R.  48;  23  Fed. 

Cas.  543),  304. 
In  Sykes,  re  (5  Biss.  113;  23  Fed.  Cas. 

582),  158. 

In  Talbot,  re  (2  N.  B.  R.  280;  23  Fed. 

Cas.  640),  223. 
In  Taliafero,   re   (3  Hughes,   422;  23 

Fed.  Cas.  674),  39,  193,  403. 
In  Tallmadge,   re   (23  Fed.   Cas.  677 

[1843]),  163. 

In  Tallman,  re  (S  Ben.  404;  23  Fed. 

Cas.  678),  133. 
In  Tanner,  re  (1  Low.  215;  23  Fed. 

Cas.  687),  174. 
In  Taylor,  re  (3  N.  B.  R.  157;  23  Fed. 

Cas.  730),  85. 


Table  of  Cases  Cited. 


xxxix 


In  Tebbetts,  re  (5  Law  Rep.  259;  23 
Fed.  Cas.  826   [1S12]),   128,   138, 
142,   153,  408. 
In  Temple,   re   (4   Saw.  92;  23  Fed. 

Cas.  835),  68,  369. 
In  Temple,   re   (6   Saw.   97;   23  Fed. 

Cas.  838),  342. 
In  Ten  Eyck,  re  (7  N.  B.  R.  26;  23 

Fed.  Cas.  844),  310. 
In  Terry,  re  (2  Biss.  356;  23  Fed.  Cas. 

849),  259. 
In  Terry,  re  (5  Biss.  110;  23  Fed.  Cas. 

852),  62. 
In  Tertelling,  re  (2  Dill.  339;  23  Fed. 

Cas.  861),  86. 
In   Tesson,   re   (9   N.   B.    R.   378;   23 

Fed.  Cas.  866),  81. 
In  Thiell,  re  (4  Biss.  241;  23  J'"ed.  Cas. 

917),  88. 
In  Thomas,  re  (8  Biss.  139;  23  Fed. 

Cas.  923),  82,  233. 
In  Thomas,  re  (3  N.  B.  R.  38;  23  Fed. 

Cas.  932),  107,  164. 
In  Thomas,  re  (11  N.  B.  R.  330;  23 

Fed.  Cas.  932),  169. 
In  Thompson,  re  (2  Ben.  166;  23  Fed. 
Cas.  1018),  135. 
.  In  Thompson,  re  (13  N.  B.  R.  300;  23 
Fed.  Cas.  1021),  99. 
In  Thornton,  re  (2  N.  B.  R.  189;  23 

Fed.  C.is.  1144),  88. 
In  Thorp,  re  (4  N.  Y.  Leg.  Obs.  377; 

23  Fed.  Cas.  1153),  283. 
In  Tifft,  re  (17  N.  B.  R.    550;  23  Fed. 

Cas.  1209),  180. 
In  Tifft,  re  (18  N.  B.  R.  78;  23  Fed. 

Cas.  1210),  106. 
In  Tifft,  re  (18  N.  B.  R.  177;  23  Fed. 

Cas.  1212),  173. 
In  Tifft,  re  (19  N.  B.  R.  201;  23  Fed. 

Cas.  11213),  36,  340. 
In  Tift,  re  (17  N.  B.  B.  421;  23  Fed. 

Cas.  1219),  176. 
In  Tills,  re  (11  N.  B.  R.  214;  23  Fed. 

Cas.  1273),  337. 
In  Tomes,  re  (19  N.  B.  R.  36;  24  Fed. 

Cas.  24),  75. 
In  Tonkins,  re  (4  N.  B.  R.  52;  24  Fed. 

Cas.  48),  240. 
In  Tonne,   re   (13  N.   B.   R.   170;   24 

Fed.  Cas.  51),  87,  91. 
In  Tooker,   re  (8  Ben.  390;  24  Fed. 

Cas.  51),  153. 
In  Town,  re  (8  N.  B.  B.  40;  24  Fed. 

Cas.  85),  301. 
In  Townsend,   re  (2  Fed.   Rop 
136,  144. 


In  Townsend,  re  (2  Ben.  62;  24  Fed, 

Cas.  102),  245.. 
In  Tracy,  re  (2  N.  B.  R.  298;  24  Fed. 

Cas.  112),  143. 
In  Treat,  re  (10  N.  B.  R.  310;  24  Fed. 

Cas.  159),  304. 
In  Trim,  re  (2  Hughes,  355;  24  Fed. 

Cas.  197),  343. 
In  Troth,  re  (1  Fed.  Rep.  405),  117. 
In  Troth,  re  (19  N.  B.  B.  253;  24  Fed. 

Cas.  214),  120. 
In  Trowbridge,  re  (9  N.  B.  R.  274;  24 

Fed.  Cas.  218),  230. 
In  Troy  Woolen  Co.,  re  (5  Ben.  413; 

24  Fed.  Cas.  241),  242. 
In   Troy   Woolen   Co.,   re  (9   Blatchf. 

191;  24  Fed.  Cas.  244),  193. 
In  Troy  Woolen  Co.,   re   (8  Blatchf. 

465;  24  Fed.  Cas.  273),  403,  404. 
In  Troy  Woolen  Co.,  re  (8  N.  B.  R. 

412;  24  Fed.  Cas.  245),  379. 
In  Tucker,  re  (24  Fed.  Cas.  264),  88. 
In  TuUey,  re  (3  N.  B.  R.  82;  24  Fed. 

Cas.  315),  220,  284. 
In  Tyler,  re  (4  N.  B.  R.  104;  24  Fed. 

Cas.  457),  144. 
In  Tyrrel,  re  (2  N.  B.  R.  200;  24  Fed. 

Cas.  479),  130. 
In  Tytle,  re  (14  N.  B.  R.  457;  15  Fed. 

Cas.  1195),  121. 
In  Ulrich,  re  (3  Ben.  355;  24  Fed.  Cas. 

510),  35. 
In  tJlrich,  re  (6  Ben.  483;  24  Fed.  Cas. 

511),  32. 
In  XJnion  Pac.   Co.,  re  (10   N.  B.  R. 

178;  24  Fed.  Cas.  624\  .-57,  272. 
In  Valentine,  re  (4  Biss.  317;  28  Fed. 

Cas.  868),  229. 
In  Valliquette,  re  (4  N.  B.  R.  307;  28 

Fed.  Cas.  930),  57. 
In  Valk,  re  (3  Ben.  431;  28  Fed.  Cas. 

873),  102. 
In  Van  Auken,  re  (14  N.  B.  R.  425 

28  Fed.  Cas.  946),  117,  118. 
In  Van  Buren,  re  (19  N.  B.  R.  149 

28  Fed.  Cas.  953),  103,  293. 
In  Vanderhoef,  re  (18  N.  B.  R.  543 

28  Fed.  Cas.  966),  161. 
In  Vanderhoef,  re  (28  Fed.  Oas.  966), 

181. 
In  Van  Tuyl,  re  (1  N.  B.  R.  636;  28 

Fed.  Cas.  1088),  172. 
In  Van  Tuyl,  re  (3  Ben.  237;  28  Fed. 

Cas.  1088),  177. 
In  Vai)  Tuyl,  re  (2  N.  B.  R.  70;  28 

Fed.  Cas.  1090),  177. 
In  Vetterlein,  re  (20  Fed.  Rep.  109), 

308. 


xl 


Table  of  Cases  Cited. 


In  Vetterlein,   re  (5  Ben.  7;  28  Fed. 

Cas.  1170),  175. 
In  Vetterlein,  re  (5  Ben.  311;  28  Fed. 

Cas.  1170),  81. 
In  Vetterlein,  re   (13  Blatchf.  44;  28 

Fed.  Cas.  1172),  293. 
In  Vicliery,   re   (3   N.   B.   R.   696;   28 

Fed.  Cas.  1173),  293. 
In  Vita,  re  (5  Law  Rep.  17;  28  Fed. 

Cas.  1188  [1842]),  400. 
In  Voetter,  re  (4  Fed.  Rep.  032),  379. 
In  Vogel,  re  (9  Ben.  498;  28  Fed.  Cas. 

1238),  162,  255. 
In  Vogel,  re  (7  Blatchf.  18;  28  Fed. 

Cas.  1239),  387. 
In  Vogel,  re  (5  N.  B.  R.  393;  28  Fed. 

Cas.  1244),  172. 
In  Vogler.  re  (2  Hughes,  297;  28  Fed. 

Cas.  1248),  93. 
In  Vorback,  re  (1  Pac.  Law  Rep.  100; 

28  Fed.  Cas.  1278),  127. 
In  Waggoner,  re  (1  Ben.  532;  28  Fed. 

Cas.  1326),  131. 
In  Waite,   re   (1   Low.   207;   28  Fed. 

Cas.  1339),  327. 
In  Waitzf elder,  re  (8  Ben.  423;  28  Fed. 

Cas.  1342),  176. 
In  Waitzf elder,  re  (18  N.  B.  R.  260; 

28  Fed.  Cas.  1343),  51. 
In  Walker,  re   (1  Low;  222;  29  Fed. 

Cas.  1),  101. 
In  Walker,  re  (1  Low.  237;  29  Fed. 

Cas.  1),  27. 
In  Walker,   re   (18   N.   B.   R.   56;   29 

Fed.  Cas.  3),  218,  339,  369. 
In  AVallace.  re  (Heady,  433;  29  Fed. 

Cas.  65),  33,  168. 
In  Wallace,  re  (12  N.  B.  R.  191;  29 

Fed.  Cas.  67),  71. 
In  Walshe,  re  (2  Woods,  225;  29  Fed. 

Cas.  110),  120,  121,  124. 
In  Walton,   re   (Deady,  442;  29  Fed. 

Cas.  125),  240,  242. 
In  Walton,  re   (Deady,   510;  29  Fed. 

Cas.  127),  229. 
In  Walton,  re   fDeady,  508;  29  Fed. 

Cas.  128),  239. 
In  Walton,  re  (1  N.  B.  R.  557;  29  Fed. 

Cas.  132),  310. 
In  Ward,  re  (12  Fed.  Rep.  325),  160, 

313. 
In  Ward,  re  (9  N.  B.  R.  349;  29  Fed. 

Cas.  160),  306. 
In  Warder,  re  (10  Fed.  Rep.  275),  386. 
In  Warne,  re  (10  Fed.  Rep.  377),  143. 
In  Warne,  re  (12  Fed.  Rep.  431),  139. 
In  Warner,  re  (7  N.  B.  R.  47;  29  Fed. 

Cas.  2.'!3),  09. 
In  Warren,  ro  (2  Ware,  322;  29  Fed. 

Cas.  266  [1847]),  79. 


In  Warshing,  re  (5  N.  B.  B.  350;  29 

Fed.  Cas.  301),  313. 
In  Wartenbach,  re  (11  N.  B.  R.  61;  2 

Fed.  Cas.  956),  145,  326. 
In  Washborn,  re  (11  N.  B.  R.  66;  29 

Fed.  Cas.  307),  310. 
In  Washington  Marine  Ins.  Co.,  re  (2 

Ben.  292;  29  Fed.  Cas.  36-5),  61. 
In  Watrous,  re  (14  N.  B.  R.  258;  29 

Fed.  Cas.  419),  228. 
In  Watson,  re  (2  N.  B.  R.  570;  29  Fed. 

Cas.  421)    84. 
In  Watson,   re   (4  N.  B.   R.   613;  29 

Fed.  Cas.  422),  27. 
In  Watson,  re  (29  Fed.  Cas.  423),  126. 
In  Watts,  re  (3  Ben.  166;  29  Fed.  Cas. 

433),  97,  134. 
In  Weaver,  re   (9  N.   B.   R.  132;  29 

Fed.  Cas.  &45),  58,  273. 
In  Webb,  re  (2  N.  B.  R.  614;  29  Fed. 

Cag.  493).  308. 
In  Webb,  re  (6  N.  B.  R.  302;  29  Fed. 

Cas.  494),  312. 
In  Webb,  re  (4  Saw.  326;  29  Fed.  Cas. 

495),  73. 
In  Weber  Furniture  Co.,  re  (13  N.  B. 

R.    559;   29  Fed.   Cas.   .536),   120, 

12i2. 
In   Weeks,   re   (8  Ben.   265;   29  Fed. 

Cas.  575),  319. 
In  Weeks,   re   (2  Biss.   259;   29  Fed. 

Cas.  577),  336. 
In  Weitzel,  re  (7  Biss.  289;  29  Fed. 

Cas.  604),  100. 
In  Welch,  re  (5  Ben.  230;  29  Fed.  Cas. 

605),  89. 
In  Welch,  re  (5  Ben.  278;  29  led.  Cas. 

606),  306. 
In  Welge,  re  (1  Fed.  Rep.  216),  220, 

284. 
In  Welles,   re   (18  N.  B.   R.  525;  29 

Fed.  Cas.  619),  120. 
In  Wells,  re  (4  Fed.  Rep.  68),  316. 
In  Wells,  re  (3  N.  B.  R.  371;  29  Fed. 

Cas.  637),  23,  61. 
In  Welman,   re   (7  Law  Rep.  25;  29 

Fed.  Cas.  681  [1844]),  165. 
In  Werner,   re   (5  Dill.  119;  29  Fed. 

Cas.  704),  358. 
In  West,  re  (39  Fed.  Rep.  203),  80. 
In  Western  Savings  &  T.  Co.,  re  (4 

Saw.  190;  20  Fed.  Cas.  775),  158, 

161. 
In  Westervelt,  re  (29  Fed.  Cas.  793), 

393. 
In  Wetmore,  re  (16  N.  B.  R.  514;  29 

Fed.  Cas.  842),  209. 
In  Weyhausen,  re  (1  Ben.  397;  29  Fed. 

Cas.  848),  163. 


Table  of  Cases  Cited. 


xli 


In  Wheeler,  re  (5  Fed.  Rep.  290),  127 

279. 
In  Wheeler,  re  (2  Low.  252;  29  Fed 

Cas.  873),  380. 
In  Wheeler,  re  (19  N.  B.  R.  385;  29 

Fed.  Cas.  877),  312,  331,  337. 
In  Whetmore,  re  (Deadv,  585;  29  Fed 

Cas.  921),  93,  96,  139. 
In  Whipple,  re  (6  Biss.  516;  29  Fed. 

Cas.  928),  39. 
In  Whipple,  re  (2  Low.  404;  29  Fed. 

Cas.  929),  120. 
In  Whipple  File  Co..  re  (1  Low.  477; 

29  Fed.  Cas.  944),  291. 
In  White,  re  (2  Ben.  85;  29  Fed.  Cas. 

966),  400. 
In  White,  re  (2  N.  B.  R.  590;  29  Fed. 

Cas.  966),  145. 
In  White,  re  (18  N.  B.  R.  107;  kt*  Fed. 

Cas.  966),  126,  272. 
In  Whitehead,  re  (2  N.  B.  R.  599-  29 

Fed.  Cas.  IftSO),  85. 
In   Whitehouse.   re   (1    Low.   429;   29 

Fed.  Cas.  1032).  101. 
In  Whiting,   re   (29  Fed.   Cas.   1055), 

126. 
In  Whiting,  re  (18  N.  B.  R.  563;  29 

Fed.  Cas.  1070),  105. 
In  Whitney,  re  (2  Low.  455;  29  Fed. 

Cas.  1068).  1.S8. 
In  Whyte.  re  (9  N.  B.  R.  267;  29  Fed. 

Cas.  1129),  1228. 
In  Wielarski,  re  (4  Ben.  468;  29  Fed. 

Cas.  1154),  165. 
In  Wiener,  re  (14  N.  B.   R.   218;  29 

Fed.  Cas.  1.54).  231. 
In  Wiggins,   re   (2  Biss.   71;  29  Fed. 

Cas.  1156),  101. 
In  Wilbur,   re   (1   Ben.  527;   29  Fed. 

Cas.  1131),  105. 
In  Wilkens,   re   (2  N.   B.   R.  349;  30 

Fed.  Cas.  302  [18691),  68. 
In  Wilkinson,  re  (3  N.  B.  R.  286;  29 

Fed.  Cas.  12.5.3).  134. 
In  Williams,  re  (13  Fed.  Rep.  30),  143. 
In  Williams,  re  (6  Biss.  233;  29  Fed. 

Cas.  1318),  39,  165. 
In  Williams,  re  (5  Law  Rep.  402;  29 

Fed.  Cas.  1.321  [1842]).  74. 
In  Williams,  re  (1  Low.  406;  29  Fed. 

Cas.  13212),  54,  66,  164. 
In  Williams,   re   (2  N.   B.   R.   83;   29 

Fed.  Cas.  1324),  304.  31.3. 
In  Williams,  re  (2  N.  B.  R.  229;  29 

Fed.  Cas.  13Z5),  294.  306. 
In  Williams,  re  02  N.  B.   R.  132;  29 

Fed.  Cas.  1327),  162. 
In  Williams,  re  (14  N.  B.  R.  132;  29 
Fed.  Cas.  1327),  57,  162. 


In  Williams,  re  (3  Woods,  403;  29  Fed. 

Cas.  1320),  76. 
In   Wilmott,   re  (2  N.   B.   R.  214;  30 

Fed.  Cas.  87  [18681),  128. 
In  Wilson,  re  (16  Blatchf.  112;  30  Fed. 

Cas.  93  [1879]),  123,  192. 
In  Wilson,  re  (2  Hughes,  228;  30  Fed. 

Cas.  97  [1S75]),  23. 
In  Wilson,  re  (2  Low.  453;  13  N.  B.  R. 

253;  30  Fed.  Cas.  97  [1875]),  68. 
In  Wilson,   re   (18  N.   B.   R.   300;  30 

Fed.  Cas.  98  [1878]),  120,  124. 
In  Winn,  re  (1  N.  B.  R.  499:  30  Fed. 

Cas.  303   [1867]),  107,  350. 
In  Winship,  re  (7  Ben.  194;  30  Fed. 

Cas.  306  [1874]),  173. 
In  Winthrop,  re  (5  Law  Rep.  24;  30 

Fed.  Cas.  375  [1842]).  102. 
In  Witkowski,  re  (10  N.  B.  R.  109;  30 

Fed.  Cas.  J03  [1874]),  176. 
In  Wood,  re  (5  Fed.  Rep.  443),  370. 
In  Wood,-  re  (8  Ben.  237;  30  Fed.  Cas. 

422  [1875]),  128. 
In  Wood,  re  (5  N.  B.  R.  421 ;  30  Fed. 

Cas.  423  [1871]),  369. 
In  Woodward,  re  (4  Ben.  102;  30  Fed. 

Cas.  541),  178,  180. 
In  Woodward,  re  (8  Ben.  112;  30  Fed. 

Cas.  542  [1875]),  180. 
In  Woolford,   re   (4   Ben.  9;  30  Fed. 

Cas.  602  [1870]).  176. 
In  Woolf skill,  re  (5  Saw.  385;  30  Fed. 

Cas.  415  [1879]).  143. 
In  Wright,  re  (2  Ben.  509:  2  N.  B.  R. 

142:  30  Fed.  Cas.  656  [1868]),  156, 

173. 
In  Wright,   re   (6  Biss.  317;  30  Fed. 

Cas.  661  [18751;  2  N.  B.  R.  41;  30 

Fed.  Cas.  663  [18681),  98. 
In   Wright,   re   (2  N.   B.   R.   490;   30 

Fed.  Cas.  663  [1869]),  .3.32. 
In  Wright,  re  (1  N.  B.  R.  393;  30  Fed. 

Cas.  662  [1873]),  202. 
In  Wright,   re  (6  Biss.  317;  30  Fed. 

Cas.  661  [1875]).  300. 
In  Wrisley,  re  (17  N.  B.  R.  259;  30 

Fed.  Cas.  717  [1877]),  391. 
In  Wronkow,  re   (15  Blatchf.  38:   18 

N.  B.   R.   81;  30  Fed.   Cas.  718), 

120. 
In  Wyatt  re  (2  N.  B.  R.  288;  30  Fed. 

Cas.  719  [1868]),  143. 
In  Wylie,  re  (2  N.  B.  R.  137;  30  Fed. 

Cas.  731  [1868]),  407. 
In  Wynne,  re  (Chase,  227;  4  N.  B.  R. 

23;  30  Fed.  Cas.  752  [1868]),  279, 

341,  355. 
In  Young,  re  (2  Dill.  239;  30  Fed.  Cas. 
865  [1875]),  147. 


xlii 


Table  of  Cases  Cited. 


In  Young,  re  (3  N.  B.  R.  440;  30  Fed. 

Cas.  835  [1869]),  91. 
In  Young,  re  (7  Fed.  Rep.  855),  32. 
In  Young,  re  (9  Fed.  Rep.  146),  126. 
In  Young,  re  (15  N.  B.  R.  205;  30  Fed. 

Cas.  835  [1876]),  84. 
In  Zinn,  re  (4  Ben.  500;  4  N.  B.  R. 

436;  30  Fed.  Cas.  934  [1871]),  209. 
In  Zinn,  re  (4  N.  B.  R.  370;  40  How. 

Pr.  461;  30  Fed.  Cas.  935),  209. 
In  Zug,  re  (16  N.  B.  R.  280;  30  Fed. 

Cas.  947  [1877]),  74. 
Insurance  Co.  v.  Comstock  (16  Wall. 

259),  189. 
Irons  T.  Bank  (27  Fed.  Rep.  591),  155. 
Ironsides,  The   (4  Biss.  518;  12  Fed. 

Cas.  103),  40,  347,  382. 
Ironsides,  The  (15  Int.  Rev.  Rec.  59; 

13  Fed.  Cas.  106),  322. 
Irving  V.  Hughes  (2  N.  B.  R.  6;  13 

Fed.   Cas.  Ill),  339. 


Jackson  v.  McColloch  (1  Woods,  433; 

13  Fed.  Cas.  225),  262. 
James  v.  Atlantic  D.  Co.  (11  N.  B.  B. 

390;  13  Fed.  Cas.  300),  65. 
Jeferies  V.  Bartlett  (20  Fed.  Rep.  496), 

89. 
Jenkins  v.  International  Bank  (106  U. 

S.  571),  111. 
Jenkins  v.  International  Bank  (127  U. 

S.  484),  110. 
Jenkins  v.  Meyer  (2  Biss.  303;  13  Fed. 

Cas.  529),  274. 
Jerome  v.   McCar.ter   (24   U.   S.  734), 

349. 
Jewett  (2  Low.  393;  13  Fed.  Cas.  580), 

118. 
Jobbins  v.  Montague  (5  Ben.  422;  13 

Fed.  Cas.  644),  34. 
Jobbins  v.  Montague  (6  N.  B.  R.  509; 

13  Fed.  Cas.  648),  48,  49,  191,  373. 
Johnson,   Case  of,   (13  Fed.   Cas.  718 

[1842]),  156. 
Jobnson   v.   Bishop   (Woolw.   324;   13 

Fed.  Cas.  732),  41,  46. 
Johnson  v.  May  (16  N.  B.  R.  425;  13 

Fed.  Cas.  771),  84,  87. 
Johnson  v.  Price  (13  K.  B.  R.  523;  13 

Fed.  Cas.  793),  186. 
Jones  V.  Clifton  (2  Flip.  191;  13  Fed. 

Cas.  942),  350,  394. 
Jones  V.  Gray  (3  Woods,  494;  13  Fed. 

Cas.  956),  92. 
Jones  V.  Kinney  (5  Ben.  259;  13  Fed. 

Cas.  985),  359. 
Jones  V.   Leach   (1  N.  B.  R.  595;  13 

Fed.  Cas.  987),  46. 


Jones  V.  Miller  (17  N.  B.  R.  316;  13 

Fed.  Cas.  994),  326. 
Jones  V.  Newson  (7  Biss.  321;  13  Fed. 

Cas.  996),  73. 
Jones  V.  Slauson  (33  Fed.  Rep.  632), 

373. 
Jones  V.  Sleeper  (2  N.  B.  R.  131;  13 

Fed.  Cas.  1030  [1843]),  354. 
Jones  V.  Sleeper  (2  N.  Y.  Leg.  Obs. 

131;  13  Fed.  Cas.  1030  [1843]),  55, 

59. 
Jones   V.    Smith   (38  Fed.    Rep.   380), 

113. 
Judson  V.  Courier  Co.   (15  Fed.   Rep. 

541),  371,  374. 
Judson  V.  Courier  Co.   (25  Fed.  Rep. 

705),  188. 
Judson  V.  Keltie  (5  Ben.  348),  14  Fed. 

Cas.  14),  354,  362. 

K. 

Kane  v.  Jenkinson  (10  N.  B.  R.  316; 

14  N.  B.  R.  121),  408. 
Kane  v.  Rice  (10  N.  B.  R.  469;  14  Fed. 

Cas.  125),  375. 
Kappner  v.  St.  Louis  &  St.  Jos.  R.  R. 

Ass'n   (3  Dill.   228;   14  Fed.   Cag. 

132),  361. 
Karr  v.  Whittaker  (5  N.  B.  B.  123; 

14  Fed.  Cas.  133),  163. 
Keating  v.  Keefer  (5  N.   B.  R.  132; 

14  Fed.  Cas.  168),  390, 
Keenan  v.  Shannan  (9  N.  B.  R.  441; 

14  Fed.  Cas.  177),  31. 
Keime  v.  Graff  (17  N.  B.  R.  319;  14 

Fed.  Cas.  218),  154. 
Kellogg  V.  Russel  (11  Blatchf.  519;  14 

Fed.  Cas.  255),  365. 
Kelly  V.  Phelan  (5  Dill.  228;  14  Fed. 

Cas.  268),  344. 
Kelly   V.    Smith    (1    Blatchf.   290;   14 

Fed.  Cas.  271  [1848]),  50. 
Kelly  y.  Strange  (3  N.  b.  R.  8;  14  Fed. 

Cas.  273),  92. 
Kimberling   v.    Hartly    (1   Fed.    Rep. 

571),  36,  397. 
Kinsing's    Assignee   v.    Bartholew    (1 

Dill.  156;  14  Fed.  Cas.  642),  123. 
Kinzie  v.  Winston  (4  N.  B.  R.  84;  14 

Fed.  Cas.  649),  390. 
Knickerbocker  Ins.  Co.  v.  Comstock  (9 

N.  B.  R.  484;  14  Fed.  Cas.  751), 

53. 
Knight  V.  Cheeny  (5  N.  B.  R.  305;  14 

Fed.  Cas.  760),  400. 
Knox    V.    Exchange    Bank    (12   Wall. 

379),  212. 
Knox  V.  Greenleaf  (Wall.,  Sr.,  108;  14 

Fed.  Cas.  815),  363. 


Table  of  Cases  Cited. 


xliii 


Kohlsaat  v.   Hoguet   (4  Ben.  5G5;  14 

Fed.  Cas.  835),  269. 
Krumbaar  v.  Burke  (2  Wash.   C.   C. 

406;  14  Fed.  Cas.  872  ri809]),  395. 


Lakin  v.  First  Nat.  Bank  (13  Blatchf. 

83;  14  Fed.  Cas.  9591,  62,  213. 
Lamb  v.  Brown  (12  N.  B.  R.  552;  14 

Fed.  Cas.  988),  156. 
Lamb  v.  Bamron  (7  N.  B.  R.  509;  14 

Fed.  Cas.  994),  35. 
Lamb  v.  Lamb  (6  Biss.  420;  14  Fed. 

Cas.  1016),  213. 
Lamp  Chimney  Co.  v.  Ansonia  Brass 

Co.  (91  U.  S.  656),  168. 
Lansing  v.  Manton  fl4  N.  B.  R.  127; 

14  Fed.  Cas.  1129),  31. 
Lastrapes  v.  Blanc  (3  Woods,  134;  14 

Fed.  Cas.  1164),  55,  67,  251. 
Lathrop  v.  Drake  (91  U.  S.  516),  185, 

186. 
Lathrop  v.  Drake  (30  Leg.  Int.  141; 

14  Fed.  Cas.  1178),  186. 
Lathrop  v.  Nelson  (4  Dill.  194;  14  Fed. 

Cas.  1183),  391. 
Lathrop  v.  Stew.art  (6  McLean.  630; 

14  Fed.  Cas.  1185  [1855]),  147. 
Lathrop  v.  Stuart  (5  McLean,  167;  14 

Fed.  Cas.  1185  [1850],  147. 
Lauglin  v.  Dock  Co.   (65  Fed.  Rep.), 

278,  392. 
Lawrence  v.  Graves  (5  N.  B.  R.  279; 

15  Fed.  Cas.  71),  263. 

Lee   V.   Franklin   Ave.    German   Rav. 

Inst.  (3  N.  B.  R.  218;  15  Fed.  Cas. 

155),  233,  275. 
Leech  v.  Dawson  (23  Fed.  Rep.  654), 

110. 
Leech  v.  Kay  (4  Fed.  Rep.  72),  223. 
Leggett  V.  Allen  (104  XJ.  S.  741),  194. 
Lehman   v.    LaForge    (42    Fed.    Rep. 

493),  113.  338,  358.  386. 
■  Lehman  v.  Smith  (15  Fed.  Cas.  258), 

298. 
Lehman    v.    Strassberger    (2    Woods, 

554;  15  Fed.  Cas.  254),  249. 
Leiter  v.  Ren.  Fire  In,«i.  Co.  (7  Biss. 

26;  15  Fed.  Cas.  274),  167. 
Lemoine  v.  Bank  of  North  America  (3 

Dill.  44;  15  Fed.  Cas.  .309).  298. 
Lewis  T.  U.  S.  (92  U.  S.  618),  308. 
Libby  v.  Hopkins  (104  TJ.  S.  203),  377. 
Lichtenauer  v.   Cheeny   (8  Fed.   Rep. 

876),  113. 
Liebke  v.  Thomas  (116  V.  S.  605),  246. 
Linder  v.  Lewis  (10  Ben.  49;  15  Fed. 

Cas.  554),  108,  375. 


Linder  v.   Lewis   (4   Fed.    Rep.   318), 

165,  369. 
Lindsey  v.  Lambert  B.  &  L.  Ass'n  (4 

Fed.  Rep.  48), 
Linkmen  v.  Wilcox  (1  Dill.  161;  5  Fed. 

Cas.  561),  356. 
Linn  v.  Smith  (4  N.  B.  R.  46;  15  Fed. 

Cas.  563),  248. 
Lisberger  v.  Garnett  (1  Hughes,  620; 

15  Fed.  Cas.  574),  366. 
Little  V.  Alexander  (1  Hughes,  171;  15 

Fed.  Cas.  601),  183. 
Little   V.    Alexander    (21   Wall.    500), 

257. 
Littlefield  v.  Del.  &  H.  Canal  Co.  (3 

Biss.  371;  15  Fed.  Cas.  621),  191. 
Livingston  v.  Brnce  (1  Blatchf.  318; 

15  Fed.  Cas.  6.58  [1843]),  336. 
Lloyd  V.  Ball  (77  Fed.  Rep.  365),  32. 
Lloyd  V.  Hoo  Sue  (5  Saw.  74;  15  Fed. 

Cas.  718),  399. 
Lloyd  V.  Strowbridge  (16  N.  B.  R.  197; 

15  Fed.  Cas.  731).  275,  329. 
Lloyd  V.  Turner  (5  Saw.  463;  15  Fed. 

Cas.  732),  377. 
Lockett  V.  Hill  (1  Woods,  552;  15  Fed. 

Cas.  744),  107. 
[Long  V.  Bullard  (117  U.  S.  617),  155. 
Long  V.  Connor  (17  N.  B.  R.  540;  15 

Fed.  Cas.  823),  340.  356. 
Long  V.  Dickerson  (15  Blatchf.  459;  15 

Fed.  Cas.  825),  150. 
Long  V.  Rogers  (6  Biss.  416;  15  Fed. 

Cas.  828),  324. 
Longstreth  v.   Pennock   (7   N.   B.   R. 

449;  15  Fed.  Cas.  838),  311. 
Loudon  V.  First  Nat.  Bank  (2  Hughes, 

420;  15  Fed.  Cas.  935),  356. 
Loving  V.  Arnold  (84  Fed.  Rep.  214), 

278 
Lucas  V.  Morris  (1  Paine,  396;  15  Fed. 

Cas.  1063  [1825]),  184. 
Lyall  V.   Miller   (6   McLean,   482;   15 
Fed.  Cas.  1124  [1855]),  396. 

1 
M. 

McAlpine  v.  Tourtelotte  (24  Fed.  Rep. 

69),  387. 
McCabe  v.  Winship  (17  N.  B.  R.  113; 

15  Fed.  Cas.  1224),  378. 
McCord   V.   McNeil   (4   Dill.   173;   15 

Fed.  Cas.  1301),  340. 
McFarland  v.  Goodman  (6  Biss.  Ill; 

16  Fed.  Cas.  90),  84. 

McGehee  v.  Hentz  (16  Fed.  Cas.  103), 

35,  36. 
McHenry  v.  La  Societe  Francaise  (95 

U.  S.  58),  215,  322. 


xliv 


Table  op  Cases  Cited. 


Mclver  v.  Moore  (1  Cranch  C.  C.  90; 
16  Fed.  Cas.  153  (1802)),  210. 

Mclver  v.  Wilson  (1  Cranch  C.  C. 
423;  16  Fed.  Cas.  154  [1807]),  379. 

McKenna  v.  Simpson  (129  U.  S.  506), 
37. 

McKinsey  v.  Harding  (4  N.  B.  R.  38; 
16  Fed.  Cas.  225),  180. 

McLean  v.  Johnson  (McLean,  202;  16 
Fed.  Cas.  251   [1843]),  72. 

McLean  v.  Klein  (3  Dill.  113;  10  Fed. 
Cas.  252),  343. 

McLean  v.  LaFayette  Bank  (3  Mc- 
Lean, 185;  16  Fed.  Cas.  253 
[1843]),  42,  186,  187,  340,  384. 

McLean  v.  LaFayette  Bank  (3  Mc- 
Lean, 415,  587;  16  Fed.  Cas.  258, 
264  [1844-6]),  212. 

McLean  v.  LaFayette  Bank  (3  Mc- 
Lean, 503;  16  Fed.  Cas.  262 
[1845]),  31. 

McLean  v.  LaFayette  Bank  (3  Mc- 
Lean, 587;  16  Fed.  Cas.  264 
[1846]),  271.  325,  340,  353,  .S66. 

Mcljean  v.  LaFayette  Bank  (4  Mc- 
Lean, 430;  16  Fed.  Cas.  280 
[1848]),  322. 

McLean  v.  Eockey  (3  McLean,  235; 
16  Fed.  Cas.  283  [1843]),  348,  397. 

McLean  v.  Meline  (3  McLean,  199;  16 
Fed.  Cas.  282  [1843]),  183,  367. 

M.  &  M.  Nat.  Bank  v.  Brady's  B.  I. 
Co.  (5  N.  B.  R.  491;  16  Fed.  Cas. 
593),  383. 

Mace  V.  Wells  (7  How.  272),  156. 

Main  v.  Glen  (7  Biss.  86;  16  Fed.  Cas. 
503),   47,   365. 

Maine  v.  Bromley  (6  Fed.  Rep.  477), 
279. 

Mall  &"  Co.  V.  Ullrich  (37  Fed.  Rep. 
653),  149. 

Marble  v.  Fulton  (1  Hask.  462;  16 
Fed.  Cas.  695),  102. 

March  v.  Heaton  (1  Low.  278;  16  Fed. 
Cas.  700),  405. 

Marionneaux's  Case  (1  Woods,  37;  16 
Fed.  Cas.  754),  148. 

Marks  v.  Barker  (1  Wash.  C.  C.  178; 
16  Fed.  Cas.  765),  377. 

Markson  v.  First  National  Bank  (9 
Chi.  Leg.  News,  108;  16  Fed.  Cas. 
768),  212. 

Markson  v.  Heaney  (1  Dill.  497;  16 
Fed.  Cas.  769),  34,  38,  185. 

Markson  v.  Hobson  (2  Dill.  327;  16 
Fec#  Cas.  774),  264. 

Marrett  v.  Atterbnry  (3  Dill.  444;  16 
Fed.  Cas.  780),  231. 

Marrott  v.  Murphy  (11  N.  B.  R.  131; 
10  Fed.  Cas.  782),  80. 


Marshal  v.  Knox  (16  Wall.  551),  332, 

343  359. 
Martin' V.  Fullings  (3  Fed.  Rep.  206), 

113. 
Martin  v.  Toof  (1  Dill.  203;  16  Fed. 

Cas.  907),  62. 
Marvin  v.  Chambers  (12  Blatchf.  495; 

16  Fed.  Cas.  927),  323. 
Mathews  v.  Abbott  (2  Hask.  289;  16 

Fed.  Cas.  1094),  235. 
Matthews  v.  West  (Cir.  Ct.  48  Fed. 

Rep.  664),  273. 
Mattocks  V.  Ferrington  (2  Hask.  331; 

16  Fed.  Cas.  1147),  39,  203. 
Mattocks   V.   Lovering   (16  Fed.   Cas. 

1149),  379. 
Mattocks  V.  Rogers  (1  Hask.  547;  16 

Fed.  Cas.  1149),  367. 
Mattox  V.   Baker  (2  Fed.   Rep.  455), 

105,  281. 
Mattox  V.  Cady  (7  Am.  Law  Rec.  613; 

16  Fed.  Cas.  1154),  380. 
May  V.  Harper  (4  N.  B.  R.  478;  16 

Fed.  Cas.  1218),  161. 
May  V.  LeClaire  (18  Fed.  Rep.  164), 

371. 
Mayben  v.  Raymond  (15  N.  B.  B.  353; 

16  Fed.  Cas.  1223),  388. 
Mayer  v.   Bank   (27  Fed.   Rep.   591), 

104. 
Mayer  v.  Gourden  (26  Fed.  Rep.  742), 

98,  123. 
Mayer  v.  Helman  (91  U.  S.  496),  278. 
Mayer  v.  Hermann  (10  Blatchf.  256; 

16  Fed.  Cas.  1240),  261,  276. 
Maynard  v.  Tilden  (28  Fed.  Rep.  688), 

110. 
Mays  V.  Fritton  (20  Wall.  414),  279. 
Mays  V.   Nat.  Bank  (64  Pa.   St.  74), 

190,  406. 
Mead   v.   National   Bank  of   Fayette- 

ville  (6  Blatchf.  180;  16  Fed.  Cas. 

1277),  288. 
Mead  v.  Thompson  (15  Wall.  635),  194. 
Meador  v.  Everett  (3  Dill.  214;  16  Fed. 

Cas.  1300),  352. 
Meddaugh  v.  Wilson  (157  U.  S.  333), 

220. 
Medsker  v.  Bonebrake  (108  TJ.  S.  66), 

64.  273. 
Merchants'  Bank  v.  Slagle  (106  IT.  S. 

558),  320. 
aierchants'  Nat.  Bank  v.  Cook  (95  TJ. 

S.  342),  278. 
Merchants'  Nat.  Bank  v.  Truax  d  N. 

B.  R.  545;  17  Fed.  Cas.  58),  264. 
Metcalf  V.  Officer  (5  Dill.  565;  17  Fed. 

Cas.  174),  70. 
Metcalf  V.  Officer  (2  Fed.  Rep.  640), 

182,  280. 


Table  of  Cases  Cited. 


xlv 


Metropolitan  Bank  v.  Rogers  (53  Fed. 

Rep.  776;  3  C.  C.  A.  666),  392. 
Meyers  v.  Valley  Nat.  Bank  (18  N.  B. 

R.  34;  17  Fed.  Cas.  250),  346. 
Michaels  v.  Post  (21  Wall.  398),  249. 
Michener  v.  Payson  (13  N.  B.  B.  49; 

17  Fed.  Cas.  259),  29,  182. 
Miller  (1  X.  Y.  Leg.  Obs.  38;  17  Fed. 

Cas.  2fi2  [1842]),  80. 
Miller  v.  Del.,  L.  &  W.  B.  Co.  (17  Fed. 

Cas.  314),  213. 
Miller  v.  Halsted  (17  Fed.  Cas.  318), 

372. 
Miller  v.  Jones  (15  N.  B.  R.  150;  17 

Fed.  Cas.  322),  325. 
Miller  t.   Keys   (3  N.  B.   R.  224;  17 

Fed.  Cas.  328),  268. 
Miller  v.  O'Brien  (9  Blatchf.  270;  17 

Fed.  Cas.  345),  356. 
Miller   v.   Wheeler    (2   Low.    346;   18 

Fed.  Cas.  497),  394. 
Milner  v.  Meek  (95  U.  S.  252),  194. 
Miltenberger    v.    Phillips    (2    Woods, 

115;  17  Fed.  Cas.  424),  111. 
Minick  v.  Coleman  (95  U.  S.  266),  194. 
Minon  y.  Van  Nostrand  (Holmes,  251; 

17  Fed.  Cas.  454;  1  Low.  458;  17 

Fed.  Cas.  455),  42. 
Mitchell  V.  Great  Works  M.  &  M.  Co. 

(2   Story,   648;   17  Fed.   Cas.  496 

[1843]),  42,  43,  186. 
Mitchell   T.    McKibbin    (29   Leg.    Int. 

412;  17  Fed.  Cas.  506),  392,  405. 
Mitchell  V.  Winslow  (2  Story,  630;  17 

Fed.  Cas.  527  [1843]),  326,  398. 
Montgomery  v.  Bucyrus  M.  W.  (92  U. 

S.   257),    278. 
Morgan  v.   Campbell   (22  Wall.  381), 

343. 
Morgan  v.  Mastick  (2  N.  B.  R.  521; 

17  Fed.  Cas.  752),  268,  276.  277. 
Morgan  v.  Thornhill  (11  Wall.  65),  194. 
Morris   v.   Brush   (2  Woods,   354;   17 

Fed.  Cas.  810),  189. 
Morse  v.   Godfrey   (3   Story,   364;   17 

Fed.   Cas.  854   [1844]),  281,  357, 

366. 
Morton  v.  Boyd  (3  How.  426),  37. 
Mott  T.  Maris  (2  Wash.  C.  0.  196;  17 

Fed.  Cas.  905),  308. 
Moyer  v.  Adams  (2  Fed.   Rep.  182), 

387. 
Moyer  v.  Dewey  (103  U.  S.  301),  155, 

373. 
Murray  v.  Marsh  (1  Brun.  Col.  Cas. 

22;  17  Fed.  Cas.  1059  [1803]),  175. 
Myers  v.  Callaghan  (5  Fed.  Rep.  726), 

99. 


Myers  v.  Seeley  (10  N.  B.  R.  411;  17 
Fed.  Cas.  1118),  407. 

N. 

Nash  V.  LeClercq  (17  Fed.  Cas.  1171), 

275,  329. 
National  Bank  of  Commerce  v.  Booth 

(5  Biss.  129;  17  Fed.  Cas.  1202), 

291. 
National  Bank  v.   Warren   (96  U.   S. 

539),  61. 
National  Park  Bank  v.  People's  Bank 

(25  Int.   P.ev.   Rec.   169;   17  Fed. 

Cas.  1229),  122. 
Neal  V.  Clark  (95  U.  S.  704),  151,  154. 
Neill  V.  Jackson  (8  Fed.  Rep.  144),  36, 

358. 
Nelson  v.  Carlan  (1  How.  265).  390. 
Nesbit  V.  Macon  B.  &  T.  Co.  (12  Fed. 

Rep.  686),  275. 
New  Lamp  Chimney  Co.  v.  Ansonia  B. 

&  C.  Co.  (91  U.  S.  656),  168,  242. 
New  Orleans  N.  B.  A.  t.  Le  Breton  (14 

Fed.  Rep.  646),  374. 
Nicholas  v.  Murray  (5  Saw.  320;  18 

Fed.  Cas.  174   [1878]),  184,   298, 

368. 
Nichols  V.  Baton  (3  Cliff.  595;  18  Fed. 

Cas.  188  [1873]),  394. 
Nightingale  (1  N.  Y.  Leg.  Obs.  8;  18 

Fed.  Cas.  238),  33. 
Noble  V.  Hammond  (129  V.  S.  65),  151, 

152. 
Norcross   (5  Law  Rep.   124;  18  Fed. 

Cas.  300  [1843]),  68,  71. 
Norton  v.  Billings  (4  Fed.  Rep.  623), 

408. 
Norton  v.  Boyd  (3  How.  426),  49. 
Norton  v.  De  La  Villebeuve  (18  Fed. 

Cas.   417),    111. 
Norton  v.  Hood  (124  U.  S.  20),  370. 
Norton  v.  Switzer  (93  U.  S.  a^5),  104. 
Norwood  (3  Biss.  504;  18  Fed.  Cas. 

452  [1873]),  32. 
Nudd  V.  Burrows  (91  TJ.  S.  426),  267, 

346. 


O'Brien  v.  Weld  (92  U.  S.  81),  105. 
Ogden  V.   Saunders  (12  Wheat.   213), 

408,  409. 
Okey  v.  Bennett  (11  How.  33),  392. 
Oliver   v.    Cunningham   (6  Fed.   Rep. 

60),  108. 
Olney  v.  Tanner  (10  Fed.  Rep.  101), 

374. 


xlvi 


Table  of  Cases  Cited. 


Olnev  V.  Tanner  (18  Fed.  Rep.  C36), 

374.  I 

Oregon  Bulletin  Printing  &  Pub.  Co.  ! 

(3  Saw.  014;  18  Fed.  Cas.  783),  Cj. 
Ostrahder   v.    Meunch    (12   Fed.    Rep. 

562),  374,  399.  I 

Osborne  v.  MoBride  (16  N.  B.  R.  22; 

18  Fed.  Cas.  842  118761),  76.  I 

Owsley   V.   Cobin   (15  N.   B.   R.  489; 

18  Fed.  Cas.  929),  l.j4.  | 


Packer  v.  Whittier  (81  Fed.  Rep.  335), 

156. 
Packham  v.  Burrows  (3  Story,  544;  19 

Fed.  Cas.  85  [1844]),  353. 
Paddopk  V.  Fisk  (10  Fed.  Rep.  125), 

396. 
Palmer  v.  Hussey  (119  U.  S.  96),  154, 

194. 
Parker  v.  Muggridge  (2  Story.  334;  18 

Fed.  Cas.  1148  [18421),  73. 
Parsons  v.  Caswell  (1  Fed.  Rep.  74), 

259. 
Partridge  v.  Dearborn  (9  N.  B.  R.  474; 

18   Fed.    Cas.   1279    [1873]),   259, 

338. 
Patrick  v.  Central  Bank  (1  Dill.  303; 

18  Fed.  Cas.  1300  [1870]),  367. 
Payne  v.  Solomon  (14  N.  B.  R.  162;  19 

Fed.  Cas.  12),  53,  54. 
Payson  t.  Brooke  (19  Fed.  Cas.  17), 

182,  216. 
Pavson  T.  Coffin  (4  Dill.  386;  19  Fed. 

Cas.  18),  111,  183. 
Payson  t.  Coffin  (5  Dill.  473;  19  Fed. 

Cas.  18),  111. 
Payson  t.  Stoever  (2  Dill.  427;  19  Fed. 

Cas.  27),  30. 
Peck  v.   Jenness   (7  How.   612),   105, 

332. 
Peckham  v.  Cozzens  (3  Fed.  Rep.  794), 

370. 
Peel-ham  y.  Cozzens  (6  Fed.  Rep.  598), 

274. 
Pence  y.  Cochran  (6  Fed.  Rep.  269), 

332. 
Pennington  y.  Lowenstein  (1  N.  B.  R. 

570;  19  Fed.  Cas.  168),  373. 
Pennington  y.  Palp  (1  N.  B.  R.  572;  19 

Fed.  Cas.  169),  218. 
Penny  v.  Taylor  (10  N.  B.  R.  200;  19 

Fed.  Cas.  194),  42,  46,  89,  105. 
Perrin  &  CrafC  JI.   Co..  v.   Pealp   (17 

N.  B.  R.  .177;  19  Fed.  Cas.  230). 

253. 
Perry  v.  Barry  (1  Cranch    C.  C.  204; 
19  Fed.  Cas.  266),  219. 


Perry  v.  I.angley  (1  N.  B.  R.  599;  19 

Fed.  Cas.  280),  249. 
Phelan  v.  Iron  Mountain  Bank  (4  Dill. 

88;  19  Fed.  Cas.  433),  365. 
Phelps  V.  Clasen  (Woolw.  204;  19  Fed. 

Cas.  445),  160,  167,  287. 
Phelps  v.  McDonald  (99  V.  S.  298),  36, 

109,  386. 
Phelps  V.  Sellick  (8  N.  B.  R.  390;  19 

Fed.  Cas.  463),  47. 
Phelps  V.   Sterns  (4  N.  B.  R.  34;  19 

Fed.  Cas.  465),  240. 
Pickett  V.  McGavick  (14  X.  B.  R.  236; 

19  Fed.  Cas.  588).  149. 
Piper  V.  BaldT  (10  N.  B.  R.  517;  19 

Fed.  Cas.  716),  331. 
Piatt  V.   Archer   (9  Blatchf.   559;  19 

Fed.  Cas.  8221,  31.  47,  63. 
Piatt  T.  Archer  (13  Blatchf.  351;  19 

Fed.  Cas.  834),  315. 
Piatt  V.  Matthews  (10  Fed.  Rep.  280), 

374. 
Piatt  V.  Preston  (19  N.  B.  R.  241;  19 

Fed.  Cas.  847).  .365. 
Piatt  V.  Stewart  (13  Blatchf.  481;  19 

Fed.  Cas,  852).  329,  3.37. 
Piatt  V.  Stewart  (11  X.  B.  R.  191;  19 

Fed.  Cas.  860),  306. 
Plaver  v.  Lippincott  (4  Dill.  124.  125; 

19  Fed.  Cas.  862.  863),  272. 
Pollock  y.  Pratt  (2  Wash.  C.  C.  490; 

19  Fed.  Cas.  948  [1811]).  308. 
Pool  V.  McDonald  (15  X.  B.  R.  560;  19 

Fed.  Cas.  987).  115. 
Porter  v.   Lazear  (109  U.  S.  84),  99, 

100. 
Post  V.  Corbin  (5  X.  B.  R.  11;  19  Fed. 

Cns.  1090),  367. 
Post  V.  Rouse  (19  Fed.  Cns.  1091).  186. 
Potter  y.  Coggeshall  (4  N.  B.  R.  73; 

in  Fed.  Cas.  11.381,  324. 
Potter  V.  Wright  (19  Fed.  Cas.  1197), 

219. 
Potts  (Crabbp.  469;  19  Fed.  Cas.  1199 

[18421),  55. 
Pratt  V.  Bnrr  (5  Biss.  36;  19  Fed.  Cas. 

rAS).  82. 
Pratt  V.  Curtis   (2  Low.  87;  19  Fed. 

Cas.  ]2.->l),  367. 
Price  V.  Clcyenger  (3  X.  J.  Eq.  207), 

413. 
Price  V.  Price  (48  Fed.  Rep.  823),  lu9. 
Price  V.  Ralston  (2  Dall.  60).  392. 
Pritchard  y.  Chandler  (2  Curt.  188;  19 

Fed.  Cas.  i;U7   [1855]),  183. 
Purviance  v.  T'ninn   Xat.  Bank  (8  N. 
B.  R.  447;  20  Fed.  Cas.  73),  394. 


Table  or  Cases  Cited. 


xlvii 


B. 


R.  Co.  V.  Delamore  (114  U.  S.  501),  64. 
Randolph  t.  Canbv  fll  N.  B.  R.  296; 

20  Fed.  Cas.  257),  348. 
Ranking  v.  Fla.,  A.  &  G.  C.  R.  R.  Co. 

(1  N.  B.  R.  647;  20  Fed.  Cas.  274), 

64. 
Rankins  v.  Third  Nat.  Bank  (14  N.  B. 

R.  4;  20  Fed.  Cas.  279),  345. 
Ransom  v.  Geer  (12  Fed.   Rep.  607), 

123. 
Rawlins  v.  Twitchell  (2  Hask.  66;  20 

Fed.  Cas.  1137),  380. 
Ray  V.   Norseworthy   (23  Wall.   128), 

403. 
Reber  v.  Gundy  (13  Fed.  Rep.  53),  257. 
Reed  v.  Cowley  (1  N.  B.  R.  516;  20 

Fed.    Cn.s.   433),   161. 
Reed  v.  Mclntyre  (98  U.  S.  507),  338. 
Richards  v.  Maryland  I.  Co.  (8  Cranch, 

84),  213. 
Riggin    V.    Magwire    (15    Wall.    549), 

291. 
Rison  V.  Knapp  (1  Dill.  187;  20  Fed. 

Cas.  835),  281,  368. 
Rix  V.  Capitol  Bank  (2  Dill.  367;  20 

Fed.  Cas.  846),  85. 
Robertson  (1  N.  Y.  Leg.  Obs.  20;  20 

Fed.  Cas.  938  [1842]),  96. 
Robinson  (7  Biss.  125;  20  Fed.   Cas. 

963)   94. 
Robinson  v.  Hall  (8  Ben.  61;  20  Fed. 

Cas.  1011),  323. 
Robinson  v.  Hanway  (19  N.  B.  R.  289; 

20  Fed.  Cos.  1012),  ^7. 
Robinson   v.   Tiittle   (2  H.nsk.   76;   20 

Fed.  Cas.  1049),  331,  357,  368. 
Robinson    r.    Wis.    M.    &   F.    Ins.    Co. 

Bank    (9  Biss.  117:  20  Fed.  Cas. 

1053),   271. 
Roby  T.  Colehonr  (146  U.  S.  153).  401. 
Roche  V.   Fox   (16  N.  B.   R.  461;  20 

Fed.  Cas.  1065).  24^ 
Rogers  v.  Palmer  (102  U.  S.  363),  257, 

277. 
Rogers  v.  Winsor  (6  N.  B.  R.  246;  20 

Fed.  Cas.  1132),  367. 
■Rosebaiini  v.  Garnett  (3  Hughes,  662; 

20  Fed.  Cas.  1193),  51. 
Rosenthal  v.  Martin  Bank  (17  Blatch. 

318:  20  Fed.  Cas.  1211),  337. 
•Rosenthal  v.  Walker  (111  U.  S.  185), 

109.  111. 
Ruddells  v.  Simonton  (3  Biss.  322;  20 

Fed.  Cas.  1235),  37. 


Ruddick  v.  Billings  (Woolw.  330;  20 

Fed.  Cas.  1306),  192. 
Ruiz  V.  Eickerman  (5  Fed.  Rep.  790), 

107,  122. 
Rundle  v.   Murgatroyd   (4  Dall.  304), 

329. 
Russell  V.  McCord  (17  N.  B.  R.  508; 

21  Fed.  Cas.  51  [1878]),  57,  337. 


S. 

Sabin   v.   Connor   (21   Fed.   Cas.   124 

[1871]),  346. 
Safford  v.  Burges  (16  N.  B.  R.  402;  21 

Fed.  Cas.  145  [1877]),  398. 
Sage  V.  Wyncoop  (104  U.  S.  319),  257. 
Sampson  v.  Burton  (4  N.  B.  R.  1 ;  21 

Fed.  Cas.  297  [1870];  5  N.  B.  R. 

459;  21  Fed.  Cas.  303  [1871]),  108. 
Sand's  Case  (1  V.  S.  L.  J.  15;  21  Fed. 

Cas.  333  [1803]),  185. 
Sandusky  v.  National  Bank  (23  Wall. 

289),  192,  193,  194. 
Sanford  v.  Lockland  (2  Dill.  6;  21  Fed. 

Cas.  358),  386. 
Sanger  v.  Upton  (91  U.  S.  56),  29. 
Sargent  v.  Helton  (115  U.  S.  348),  185. 
Sawyer  v.  Hoag  (17  Wall.  610),  377. 
Sawyer  v.  Turp'n  (1  Holmes.  226;  21 

Fed.  Cas.  589  [1873]),  272. 
Sawyer  v.  Turpin  (91  U.  S.  114),  270. 
Scammon  v.  Cole  (5  N.  B.  R.  257;  21 

Fed.    Cas.   627;   3   N.   B.   R.   393 

[1871];  21  Fed.  Cas.  632  [1869]), 

276. 
Scammon  v.  Hobson  (1  Hask.  406;  21 

Fed.  Cas.  638  [1872]),  358. 
Scammon  v.  Kimball  (8  N.  B.  R.  337; 

21  Fed.  Cas.  641  [1873]),  379. 
Schrenkeisen  v.  Miller  (9  Ben.  55;  21 

Fed.   Cas.  733   [1877]),  361. 
Schulenburg  v.  Kabureck  (2  Dill.  132; 

21  Fed.  Cas.  751  [1873]).  361. 
Schulze  V.  Bolting  (8  Biss.  174;  17  N. 

B.    R.    167;    21    Fed.    Cas.    754, 

[1878]),  323,  361. 
Scofield  V.  Morehead  (2  N.  B.  R.  1;  21 

Fed.  Cas.  780  [1868]),  181. 
Scott  v.  Ellery  (142  TJ.  S.  381),  235. 
Scott  V.  Kelly  (22  Wall.  57),  108. 
Scott  T.  Little  (76  Fed.  Rep.  563),  109. 
Searcy  v.  McChord  (1  Fed.  Rep.  261), 

404. 
Seay  v.  Wilson  (9  Fed.  Rep.  589),  235. 
Sedgwick  v.  Grinnell  (9  Ben.  429;  21 

Fed.  Cas.  978  [1878]),  405,  407. 


xlviii 


Table  of  Cases  Cited. 


Sedgwick  v.  Lynch  (5  Ben.  489;  8  N. 

B.    R.    289;    21    Fed.    Ca.s.    981 

[1872]),  404. 
Sedgwick  v.  Meack  (6  Blatchf.  156;  1 

N.   B.   R.  675;  21  Fed.   Cas.   984 

[1868]),   3ff7. 
Sedgwick  v.  Milward  (5  N.  B.  R.  347; 

21  Fed.  Cas.  985  [1871]),  357. 
Sedgwick  v.  Place  (1  N.  B.  R.  673;  21 

Fed.  Oas.  998  [1868]),  369. 
Sedgwick  v.  Place  (3  Ben.  .SCO;  3  N. 

B.    R.    139;    21    Fed.    Cas.    986 

[1869]),  32. 
Sedgwick  v.  Place  (3  N.  B.  R.  802;  21 

Fed.  Cas.  999  [1869]),  32. 
Sedgwick  v.  Place  (12  Blatchf.  163;  10 

N.   B.    R.    28;   21   Fed.    Cas.   992 

[1874]),  328. 
Sedgwick  v.  Stewart  (9  Ben.  433;  2] 

Fed.  Cas.  104  [1878]),  236. 
Sessions  v.  Johnson  (95  U.  S.  347),  328. 
Sessions  v.   Romada   (145  U.   S.   29), 

113,  397,  407. 
Shaffer  v.  Pritchery  (4  N.  B.  R.  548; 

21  Fed.  Cas.  1147  [1871]),  300. 
Shainwald   v.    Davids    (69   Fed.    Rep. 

687),  33,  109,  212. 
Shainwald  v.  Lewis  (5  Fed.  Rep.  510), 

27. 
Sharp  V.  Doyle  (102  U.  S.  686),  383. 
Sharp  V.  Philadelphia  "Warehouse  Co. 
ri9  N.  B.  R.  378;  21  Fed.  Cas.  116S 

[1880]),  265. 
Sharp  V.  Phil.  W.  Co.  (10  Fed.  Rep. 

379),  374. 
Shawhan  v.   Wherritt   (7  How.   627), 

168,  359. 
Shearman  v.  Bingham   (Holmes,  272; 

21  Fed.  Cas.  1212  [1873]),  278. 
Shelley  v.  BUiston  (18  N.  B.  R.  375; 

21  Fed.  Cas.  1244),  332. 
Sherman  v.  Bank  (8  Biss.  371;  21  Fed. 

Cas.  1276),  161. 
Sherman    v.    Traders'    Nat.    Bank    (9 

Biss.     216;     21     Fed.     Cas.     1282 

[1879]),  280. 
Shouse  (Crabbe,  482;  22  Fed.  Cas.  27 

[1842]).  56,  62. 
Shuman  v.  Fleckenstein  (4  Saw.  174; 

22  Fed.  Cas.  54),  355. 

Sicard  v.  Buffalo,  N.  Y.  &  P.  R.  Co. 

(15  Blatchf.  525;  22  Fed.  Cas.  64), 

191,  348. 
Sidener  v.  Clier  U  Biss.  301;  22  Fed. 

Cas.  101),  376. 
Sigsby  V.  Willis  (3  Ben.  371;  22  Fed. 

Cas.  112),  247,  2r-,r,,  288. 
Sill  V.  Solberg  (6  Fed.  Rep.  46S),  265. 


Silverman's  Case  (1  Saw.  410;  22  Fed. 

Cas.  135),  48,  54. 
Silverman's     Case     (Fed.     Cas.     No. 

12855),  410. 
Singer  v.  Jacobs  (11  Fed.  Rep.  559), 

374. 
Singer  v.  Sloan  (3  Dill.  110;  22  Fed. 
Cas.  201;  11  N.  B.  R.  433;  22  Fed. 
Cas.  202),  277. 
Sixpenny  Savings  Bank  v.  Estate  of 
Stuyvesant  Bsnk  (j2  BJatohf.  179; 
22  Fed.  Cas.  264),  31  (i. 
Skylark,   The    (4   Biss.   383;   22   Fed. 

Cas.  307),  331. 
Sloan  V.  Lewis  (22  Wall.  150),  253. 
Smith,  Case  of  (1  Penn.  L.  J.  140;  22 

Fed.  Cas.  415  [1842]),  .338. 
Smith  V.  Babcock  (2  Woodb.  &  M.  246; 

22  Fed.  Cas.  432),  152. 
Smith  V.  Buchanan  (8  Blatchf.  153;  22 

Fed.  Cas.  458),  342,  357. 
Smith  V.  Claflin  (19  N.  B.  R.  523;  22 

Fed.  Cas.  485),  368. 
Smith   V.    Crawford    (6   Ben.   497;   22 

Fed.  Cas.  489),  112. 
Smith  V.   Ely   (10  N.   B.    R.   553;   22 

Fed.  Cas.  538),  327,  355. 
Smith  V.  Gordon  (2  N.  Y.  Lesr.  Obs. 
325;  22  Fed.  Cas.  554  [1844]),  215, 
338. 
Smith  V.  Kehr  (2  Dill.  50;  22  Fed.  Cas. 

584),  83,  355,  357. 
Smith  V.  Little  (5  Biss.  490;  22  Fed. 

Cas.  589),  265. 
Smith  V.   Mcl,ean  (10  X.   R.   R.  260; 

22   Fed.   Cas.   591),   265. 
Smith  V.  Mason  (14  Wall.  419),  194, 

359,  371. 
Smith  V.  Teutonia  Ins.  Co.  (4  Chi.  Leg. 
News,  130;  22  Fed.  Cas.  685),  58. 
Sonstiby  v.  Keeley  (11  Fed.  Rep.  578), 

352. 
Sparhawk  v.  Drexel  (12  N.  B.  R.  450; 

22  Fed.  Cas.  860),  243,  369. 
Sparhawk  v.  Richards  (12  N.  B.  R. 

74;  22  Fed.  Cas.  868),  393. 
Sparhawk  v.  Yerkes  (12  Sup.  Ct.  Eep. 

104;  142  V.  S.  1),  386,  397. 
Spaulding  v.  McGovern  (10  N.  B.  R. 

188;  22  Fed.  Cas.  891),  185. 
Spaulding  v.  McGovern  (22  Fed.  Cas. 

892),  369. 
Spaulding  v.  New  York  (4  How.  21). 

156. 
Spicer  v.  Ward  (3  N.  B.  R.  512;  22 

Fed.  Cas.  931),  248. 
Starkweather  v.  Cleveland  Ins.  Co.  (4 
Chi.  Leg.  News,  175;  22  Fed.  Oas, 
1093),  393. 


Table  of  Cases  Cited. 


xlix 


Steadman  v.  Caswell  (2  Hask.  375;  22 
Fed.  Cas.  1160),  57.  i 

Stephenson  v.  Jackson  (2  Hughes,  204; 

22  Fed.  Cas.  1307),  82. 

Stern,   Case  of  (22  Fed.  Cas.  1309), 

168. 
Stern  v.  Schonfield  (22  Fed.  Cas.  1310), 

161,  258. 
Stevens  v.  Appleton  (4  Cliff.  265;  23 

Fed.  Cas.  6),  184. 
Stewart  v.  Loomis  (23  Fed.  Cas.  66), 

256,  353. 
Stickney  v.  Wilt  (23  Wall.  150),  190. 
Stillwell  V.  Walker  (17  N.  B.  R.  569; 

23  Fed.  Cas.  93),  192. 
Stobaugh  V.  Mills  (8  N.  B.  R.  361;  23 

Fed.  C.is.  110),  265. 
Storrs  V.   Eugle   (3   Hughes,   414;   23 

Fed.  Cas.  165),  213. 
Stotesbury   v.    Cadwallader    (31   Leg. 

Int.  229;  23  Fed.  Cas.  176),  213. 
Stout  V.  Yaeger  Mill  Co.  (18  Fed.  Rep. 

802),  278. 
Stover  V.    Kennedy   (5   Rep.   136;   23 

Fed.  Cas.  194),  259. 
Stranahan  v.  Gregory  (4  N.  B.  R.  427; 

23  Fed.  Cas.  216),  357. 
Strang  v.  Bradner  (114  U.  S.  555),  151, 

152. 
Street  v.  Dawson  (4  N.  B.  R.  207;  23 

Fed.  Cas.  233),  342. 
Streeter  v.  Jefferson  Co.  Bank  (147  V. 

S.  36),  239. 
Stucky     V.     Mn  sonic     S.     Bank     (108 

U.  S.  74),  273. 
Sturges  v.  Colby  (2  Flip.  163;  23  Fed. 

Cas.  308),  286. 
Sturges   V.    Crowninshield   (4  Wheat. 

122),  408. 
Sullivan  v.  Hieskill  (Crabbe,  525;  23 

Fed.  Gas.  349  [1843]),  369. 
Sutherland    v.     Lake    Superior     Ship 

Canal,  Railroad  &  Iron  Co.  (9  N. 

B.  R.  298;  23  Fed.  Cas.  459),  184. 
Swan  V.  Robinson  (5  Fed.  Rep.  287), 

275,  279. 
Sweatt  V.  Boston.  H.  &  E.  R.  R.  Co. 

(3  Cliff.  339;  23  Fed.   Cas.  530), 

64. 
Swope  V.  Arnold  (5  N.  B.  B.  148;  23 

Fed.  Cas.  574),  333. 


Tappan   v.    Whittemore    (15   Blatchf. 

440;  23  Fed.  Cas.  695),  112. 
Taylor  (1  Hughes,  617;  23  Fed.  Cas. 

727),  101,  106. 
Taylor  v.   Irwin  (20  Fed.   Rep.  615), 

386,  398. 


Taylor  v.  Rash  (5  N.  B.  R.  399;  23 

Fed.  Cas.  789),  407. 
Teuu.v  V.  Collins  (4  N.  B.  R.  477;  23 

Fed.   Cas.   S48),   14'"»,   177. 
Thames  v.  Miller  (2  Woods,  564;  23 

Fed.  Cas.  887),  331,  357. 
Thatcher  v.  Rockwell  (105  U.  S.  467), 

104. 
Thelso  V.  Cain  (23  Fed.  Cas.  906),  87. 
Thistle  V.  Hamilton  (4  Dill.  162;  23 

Fed.  Cas.  920),  171. 
Thomas  v.  Blythe  (55  Fed.  Rep.  961), 

110. 
Thomas  v.   Oruttenden   (4  Cranch  O. 

C.  71;  23  Fed.  Cas.  936  [1830]), 

400. 
Thomas  v.  Minot  (10  Gray,  263),  77. 
Thomas  v.  Woodbury  (1  Hask.  559; 

23  Fed.  Cas.  982),  272. 
Thornhill  v.  Bank  of  Louisiana  (3  N. 

B.  R.  435;  23  Fed.  Cas.  1135;  1 

Woods,  1;  23  Fed.  Cas.  1139),  30, 

193 
Thornhill  v.  Link  (8  N.  B.  R.  521;  28 

Fed.  Cas.  1143),  368. 
Tiernan  v.  Woodruff  (5  McLean,  350; 

Z3  I'ed.  Cas.  IzU6  LJ^*^^J),  ^36. 
Tiffany  v.   Boatman's  Institution   (18 

Wall.  375),  273. 
Tiffany  v.  Lucas  (15  Wall.  410),  370. 
Tifft  V.  Ironclad  Mfg.  Co.  (16  Blatchf. 

48;  23  Fed.  Cas.  1217),  186. 
Tinker  v.  Van  Dyke  (14  N.  B.  R.  112; 

23  Fed.  Cas.  1297),  278. 

Todd  v.  Townsend  (9  Am.  Law  Rev. 

150;  23  Fed.  Cas.  1352),  329. 
Toof  V.  Martin  (13  Wall.  40),  58,  266, 

276. 
Townsend  v.  Leonard  (3  Dill.  370;  24 

Fed.  Cas.  102),  330. 
Traders'  Bank  v.  Campbell  (14  Wall. 

87),  257,  258. 
Traer  v.  Clues  (115  U.  S.  528),  401. 
Trafton   (2   Low.   505;  24  Fed.   Cas. 

122),  117. 
Tremont  National  Bank  (2  Low.  409; 

24  Fed.  Cas.  184),  98. 

Trimble  v.  Woodhead  (102  U.  S.  647), 

373. 
Triplet 'v.  Hanley  (1  Dill.  217;  24  Fed. 

Cas.  203),  280. 
Trust  Co.  v.  Sedgwick  (97  U.  S.  304), 

373. 
Trv-v  c's  of  M.  B.  F.  &-  T>.  P.  Ban';:  v. 

Bosseiux  (3  Fed.  Rep.  817),  112, 

371. 
Tua  V.  Carrlere  (117  U.  S.  201),  408. 
Tucker  v.   Oxley  (5  Ci-anch,  35),  74, 

377. 


IV 


Table  of  Cases  Cited. 


Tufts  V.  Matthews  (10  Fed.  Eep.  609), 

392 
Turnbuil  v.  Payson  (95  U.  S.  418),  29. 
Tuttle  V.  Truax  (1  N.  B.  B.  601;  34 

Fed.  Cas.  397),  327. 
Tyler  V.  Angevine  (15  Blatchf.  536; 

24  Fed.  Cas.  458),  112,  193. 


U.  S.  V.  Smith  (13  N.  B.   R.  61;  27 

Fed.  Cas.  1170),  198. 
V.  S.  V.  Swett  (2  Hask.  310;  28  Fed. 

Cas.  3),    198. 
U.  S.  V.  The  Rob  Roy  (1  Woods,  42; 

27  Fed.  Cas.  873),  151. 

U.  S.  V.  Throckmorton  (8  N.  B.  R.  309; 

28  Fed.  Cas.  158),  151,  301. 

U.   S.  V.  Tusey  (6  N.   B.  R.  28i;  27 

Fed.  Cas.  631),  198. 
U.    S.   V.   Zerega   (28  Fed.   Cas.   804 

[1856]),  151. 
Upshur  T.  Brisco  (138  TJ.  S.  365),  153. 
Upton  V.  Hansbrough  (8  Biss.  417;  28 

Fed.  Cas.  839),  29,  30. 
Upton  V.  Jackson   (1  Flipp.   413;   28 

Fed.  Cas.  844),  30,  216. 


Ungewitter  v.  Von  Sachs  (4  Ben.  167; 

24  Fed.  Cas.  531),  348. 
U.   S.  V.  Barnes  (81  Fed.  Rep.  705), 

308. 
U.  S.  V.  Bayer  (4  Dill.  407;  24  Fed. 

Cas.  1046),  107.  I 

U.  S.  T.  Block  (4  Saw.  211;  24  Fed.  ' 

TT    S^^'  ■^^^^'  '^^'^\^  ^  A    T>        Qm     Upton  V.  McLaughlin  (105  U.  S.  640), 
U.  S.  V.  Brawner  (7  Fed.  Rep.  86),  m 

108.  I        ^■^^• 

V.  S.  V.  Clark  (1  Low.  402;  25  Fed.  I 
Cas.  446),  56,  95.  I 

U.  S.  y.  Conngr  (3  McLean    573;  25    yanderhoof  y.  City  Bank  of  St.  Paul 
Fed.  Cas.  595  [1842]),  96,  193.        |        ^^   j^-^^    ^^g.   ^g  Fed.   Cas.  967), 

342. 
Van  Kleeck  v.  Miller  (19  N.  B.  R.  484; 


V. 


U.   S.  V.   t'.rnne   i:-i  Oliff.  211;  lio   Fed. 
Cas.  689),  196. 


U.   S.  v.   Davis   (3  McLean,   483;   25 

Fed.  Cas.  780  [1844]),  151. 
U.    S.    V.    DemiuK    (4    McJUeau.    3;    25 

Fed.  Cas.  816  [1845]),  196. 
U.  S.  v.  Dobbins  (25  Fed.   Cas.  876 

[1842]),  101. 
U.  S.  V.  t'lsher  (2  Cran"!!.  .S.58), 
U.  S.  V.  Fox  (95  U.  S.  670),  19S. 
U.  S.  Frank  (2  Biss.  263;  25  Fed.  Cas. 

1205),  197. 
U.  S.  V.  Geary  (4  N.  B.  R.  534;  25 

Fed.   Cas.   1272),   197. 
U.  S.  V.  Herron  (20  Wall.  251),  151. 
U.  S.  T.  Hooe  (3  Cranch,  73), 
U.  S.  V.  King  (Wall.  Sr.  13;  26  Fed. 

Cas.  788  [1802]),  151. 
U.  S.  V.  Latorre  (8  Blatchf.  134;  26 


I        28  Fed.  Cas.  1025),  36,  272,  286, 

368. 
Van  Kleeck  v.  Thurber  (28  Fed.  Cas. 

1031  [1842]),  62,  170. 
Verselius  v.  Verselius  (9  Blatchf.  189; 

28  Fed.  Cas.  1169),  184. 
Vetterleiu  v.  Barnes  (6  Fed.  Rep.  693), 

72. 
Vogle  T.  Lathrop  (4  N.  B.  R.  439;  28 

Fed.  Cas.  1246),  276,  331,  341. 
Voight  v.  Lewis  (14  N.  B.  R.  548;  28 

Fed.  Cas.  1257),  349. 
Voils  V.  Parker  (4  Fed.  Rep.  210),  332. 


W. 


Fed.  Cas.  872),  197.  ,_^   ,  .,         ,_  ,      ,„  ,>,   ti    tj    qir. 

U.  S.  y.  Lewis  (13  N.  B.  R.  38;  28  ,  ^adsworth  v.  Tyler  (2  N.  BR.  316; 

Fed   Gas   9201   80   S07  i         ^8  Fed.  Cas.  1820),  56,  355. 

U.  S.  ;.  Myws  (16  N.  B.'r.  387;  27    Wager  v.  Hall  (16  Wall.  584),  261, 

Fed.  Cas.  49),  197.  "'    "      ""  '"  "  '"  """""  ""  "" 

U.   S.  Y.  Nichols  (4  McLean,  23;  27 

Fed.  Cas.  151  [1845]),  197 


U.    S.   V.    Passmore   (4  iJall.   372;   27 

Fed.   Cas.  458   [1804]),   198. 
U.   S.   V.   Ponn    (IH   N.   B.   R.   404;   27 

Fed.  Cas.  490),  198. 
U.  S.  V.  Prescott  (2  Biss.  325;  27  Fed. 

Cas.  614),  197. 
U.  S.  V.  Prescott  (2  Dill.  405;  27  Fed. 

Cas.  616),  198. 


Wait  V.  Bulls  Head  Bank  (19  N.  B.  R. 

500;  28  Fed.  Cas.  1338),  328,  827, 

328. 
Wakeman  v.  Hoyt  (5  Law  Rep.  309; 

28  Fed.  Cas.  1350  [1842]),  57,  59. 
Walbruu  y.   Babbitt   (16  Wall.  577), 

870. 
Wald  y.  Wehl  (6  Fed.  Rep.  163),  168, 

370. 
Walker   v.    Reister    (102   U.    S.   467), 

393. 


Table  of  Cases  Cited. 


Walker  r.  Seigel  (12  N.  B.  R.  394;  29 

Fed.  Cas.  49),  38. 
Walker  v.  Towner  (4  Dill.  165;  29  Fed. 

Cas.  57),  112. 
Wallace  v.  Loomls  (97  U.  S.  146),  405. 
Warford  v.  Noble  (19  Am.  Law  Reg. 

44;  29  Fed.  Cas.  227),  100. 
Warford  v.  Noble  (2  Fed.  Rep.  202), 

100. 
AVariug   v.    Buchanan    (19    N.    B.    R. 

502;  29  Fed.   Cas.   228),   201,   266, 

341. 
Warner  v.  Cronkhite  (6  Hiss.  453;  29 

Fed.  Cas.  243),  152. 
Warner  v.  Spooner  (3  Fed.  Rep.  890), 

285. 
Warren  v.  Del.,  L.  &  W.  R.  Co.  (7  N. 

B.  R.  451;  29  Fed.  Cas.  271),  361. 
Warren  v.  Uarber  (1  Hughes,  iiOT;  20 

Fed.   Cas.   275).   27!». 
Warren  v.  Moody  (122  U.  S.  132),  274. 
Warren    v.     Tenth     Nat.     Bank     (9 

Blatchf.   193;  29  Fed.   Cas.  286), 

190. 
Warren     v.    Tenth    Nat.     Bank    (10 

Blatchf.  493;  29  Fed.  Cas.  287), 

258,  275,  361. 
Warren  v.  Tenth  Nat.  Bank  (5  Ben. 

395;  29  Fed.  Cas.  284),  275,  276. 
Watson  T.  Citizens'  Savings  Bank  (2 

Hughes,  200;  29  Fed.   Cas.  427), 

30. 
Watson  V.  Lemar  (29  Fed.  Cas.  424 

[1842]),  343. 
Webb  V.  Sachs  (4  Saw.  158;  29  Fed. 

Cas.   523),   57,   62,   258,    265,   275, 

370. 
Webster  v.  Woolbridge  (3  Dill.  74;  29 

E'ed.   Cas.   560),   330. 
Wehl  V.  Wall  (3  Fed.  Rep.  93),  372. 
West  Phil.  Bank  v.  Dickson  (95  U.  S. 

180),  278. 
Whiston  V.  Smith  (2  Low.  101;  29  Fed. 

Cas.  944),  322,  352. 
White  V.  Crawford  (9  Fed.  Cas.  371), 

233. 
White  V.  Howe  (3  McLean,  291;  29 

Fed.  Cas.  1019  [1842]),  147. 
White  V.  Jones  (6  N.  B.  R.  175;  29 

Fed.  Cas.  1020),  405. 
Whitman  v.  Butler  (8  N.  B.  R.  487;  29 

Fed.  Cas.  1063),  401. 
Wickham  v.  Valle  (11  N.  B.  R.  83;  29 

Fed.  Cas.  1145),  393. 
Wicks  T.  Perkins  (1  Woods,  383;  29 

Fed.  Cas.  1146),  323. 
Wight  T.  Condict  (154  U.  S.  666),  71. 


Wight  y.  Muxlow  (8  Ben.  52;  29  Fed. 

Cas.  1174),  258,  277. 
Wilbur  V.  Wilson  (29  Fed.  Cas.  1197). 

330. 
Wilkins  v.  Davis  (2  Low.  511;  29  Fed. 

Cas.  1248),  68,  69,  73,  82. 
Wilkinson  v.  Babbitt  (4  Dill.  207;  29 

Fed.  Cas.   1253),  308. 
Wilkinson  v.  Barnard  (9  Ben.  249;  29 

Fed.  Cas.  1254),  39. 
Williams  v.   Heard   (140  U.  S.  529), 

386. 
Williamson  v.   Colcord  (13  N.  B.   R. 

319;  30  Fed.  Cas.  9  [1875]),  891. 
Wills  V.  Claflin  (92  U.  S.  135),  182. 
Wilmot  V.  Mudge  (103  U.  S.  217),  123. 
Wilson  V.  Atlantic  &  St.  L.  R.  Co.  (2 

Fed.  Rep.  459),  407. 
Wilson  V.  Brinkman  (2  N.  B.  R.  468; 

30  Fed.  Cas.  114),  341. 
Wilson  V.  Childs  (8  N.  B.  R.  527;  30 

Fed.  Cas.  116  [1873J),  832,  am. 
Wilson  V.  City  Bank  (17  Wall.  473), 

257. 
Wilson   V.    Nat.    Bank   (3   Fed.    Rep. 

391),  189,  378. 
Wilson  V.  Stoddard  (4  N.  B.  R.  254;  30 

Fed.  Cas.  225   [1870]),  267. 
Winchester  v.  i-ieisneli  (j.±9  U.  S.  450; 

12(i  V.  S.  278).  39. 
Winsor  v.  Kendall  (3  Story,  507;  30 

Fed.  Cas.  320  [1844]),  272. 
Winsor  v.  JUcLeOan  (2  Storv.  492;  30 

Fed.  Cas.  323  [1843]),  398. 
Winter  v.  Railway  Co.  (2  Dill.  487;  30 

Fed.  Cas.  329  [1873]),  64. 
Wisner  v.  Brown  (22  U.  S.  214),  110. 
Wiswall  V.  Campbell  (93  U.  S.  347), 

194. 
Withrow  V.  Fowler  (7  N.  B.  R.  239;  80 

fed.  Cas.  402  [laTZi),  2i9. 
Witt  V.  Hereth  (6  Biss.  474;  80  Fed. 

Cas.  404  [1875]),  258. 
Wolf  V.  Stix  (99  TJ.  S.  1),  155,  156. 
Wood  V.  Bailey  (21  Wall.  640),  188. 
Wood  V.  Owings  (1  Cranch,  239),  274. 
,  Wood  V.  Wright  (4  Fed.  Rep.  511), 
I        387. 
Woods  V.   Buckewell  (2  Dill.  38;  30 
I        Fed.  Cas.  531  [1872]),  190. 
Woolfolk  V.  Murray  (10  N.  B.  R.  540; 
I        30  Fed.  Cas.  600 
I  Woolfolk  V.   Nesbit   (154  U.   S.   650), 
I         .370. 
Wright  V.  Filley  (1  Dill.  171;  4  N.  B. 
R.  610;  30  Fed.  Cas.  672  [1870]), 
59. 


lii 


Table  cp  Cases  Cited. 


Wright  V.  Johnson  (8  Blatchf.  150;  4 
N.  B.  R.  626;  30  Fed.  Cas.  678 
[1871]),  213. 

Wylie  V.  Smith  (2  Woods,  673;  30  Fed. 
Cas.   732   [1875]),  286. 

Y. 

Yancy  v.  Cothran  (32  Fed.  Rep.  687), 

113. 
Yeatman   v.    Savings    Institution    (95 

U.  S.  764),  349,  398. 
York's  Case  (1  Abb.    [U.  S.]   503;  4 

N.  B.   R.  479;  30  Fed.  Cas.  814 

[1870]),  164,  192. 


Zahm  T. 

Cas. 
Zarppas' 

Fed. 
Zeiber  v, 

239; 

104. 
Zep"nnk 

154. 
Zuba  V. 

239; 

306. 


Fry  (9  N.  B.  R.  546;  30  Fed. 

904  [1874]),  259,  405. 
Case   (4   Law   Rep.   480;   30 
Cas.  916  [1842]),  107,  155. 

.  Hill  (ISaw.  2(jb:  8  .\.  B.  R. 

30    Fed.    Cas.    917    [1870]), 

V.  Card  (11  Fed.  Rep.  295), 

Hill  (1  Saw.  268;  8  N.  B.  R. 
30   Fed.    Cas.    917    [1870]), 


ABBREVIATIONS. 


Abb.  (U.  S.) Abbott's  United  States  Beports. 

Alb.  L.  J Albany  Law  Journal. 

Amer.  Law  Reg American  Law  Register. 

Ben Benedict's  District  Court  Reports. 

Blss Bissell's  Reports. 

Blatchf Blatchford's  Circuit  Court  Reports. 

Bond Bond's  Reports. 

Brun.  Ool.  Cas Brunner's  Collected  Cases. 

Chi.  Leg.  News Chicago  Legal  News. 

Cin.  Law  Bui Cincinnati  Law  Bulletin. 

Cin.  Law  J Cincinnati  Law  Journal. 

Cliff Clifford's   Beports. 

Crabbe Crabbe's  Reports. 

Cranch  C.  C Cranch's  Circuit  Court  Reports. 

Deady Deady's  Reports. 

Dill Dillon's  Circuit  Court  Reports. 

Fed.  Cas Federal  Cases. 

Fed.  Rep Federal  Reporter. 

Flip Flippin's  Beports. 

Law  Rep Law  Reporter. 

How Howard's  United  States  Supreme  Court  Reports. 

Hughes Hughes'  Reports. 

Law  Rep Law  Reporter. 

Leg.  Int Legal  Intelligencer. 

Low Lowell's  Decisions. 

McLean McLean's  Reports. 

N.  B.  R National  Bankruptcy  Register  Reports. 

N,  J.'' Law  J New  Jersey  Law  Journal. 

N.  Y.  Leg.  Obs New  York  Legal  Observer. 

Pa.  St Pennsylvania  State  Reports. 

Penn.  L.  J Pennsylvania  Law  Journal. 

Saw Sawyer's  Reports. 

Story Story's  Reports. 

U.  S United  States  Supreme  Court  Reports. 

Wall Wallace's  United  States  Supreme  Court  Reports. 

Wall.  Sr Wallace's  Reports  (Circuit  Court). 

West.  L.  J Western  Law  -Journal. 

Woodb.  &  M Woodbury  and  Minot's  Reports. 

Woods Woods'  Reports. 

Woolw Woolworth's  Circuit.  Court  Reports. 


EDITOR'S  NOTE. 


The  act  of  Congress  "  To  establish  a  uniform  sygtem  of  bank- 
ruptcy throughout  the  United  States,"  approved  July  1,  1898,  is  a 
departure,  and,  in  some  of  its  provisions,  a  radical  departure  from 
previous  statutes  upon  that  subject  either  in  the  United  States  or 
Great  Britain.  It  is  the  purpose  of  this  volume  to  give  the  text 
of  the  present  law,  and  under  each  section  syllabi  of  such  decisions 
by  the  Supreme,  Circuit  and  District  courts  of  the  United  States 
as  will  aid  in  construing  it. 

The  intelligent  practitioner  will  not  fail  to  realize  that  decisions 
under  a  statute  should  be  interpreted  in  the  light  of  its  language; 
and  it  is  reasonable  to  request  that  this  guiding  principle  shall  be 
borne  in  mind  in  applying  the  opinions  that  are  digested  in  this 
volume.  For  the  most  part,  these  decisions  were  rendered  under 
the  Act  of  1867,  and  in  other  cases,  the  fact  is  stated  or  made  to 
appear  from  the  year  in  which  the  decision  was  rendered,  which  is 
added  to  the  note.  The  text  of  previous  laws  of  the  United  States 
on  the  subject  of  bankruptcy,  and  the  several  acts  amendatory 
thereof,  with  the  dates  of  their  approval,  is  appended,  and  will  be 
found  of  assistance  in  giving  effect  to  the  decisions  here  sum- 
marized. 

It  will  be  noted  that  the  officer  known  as  the  "  register  "  under 
the  Act  of  1867  is  now  designated  as  "  referee,"  and  that  the 
duties  devolved  upon  the  "  assignee  "  by  the  provisions  of  that  law 
are  to  be  performed  substantially  by  a  "  trustee,"  under  the  pres- 
ent act. 

It  has  been  sought  to  arrange  the  notes  under  the  sections  to 
which  they  respectively  apply.     This  work  has  been  attended  with 


4  Editor's  Note. 

great  difficulty,  and  any  failure  to  perform  it  satisfactorily  is  not 
to  be  charged  wholly  to  the  editor.  For  example:  Section  3 
defines  acts  of  bankruptcy,  and  of  these  voluntary  preferences 
form  an  important  part;  but  that  subject  i^  treated  in  section  60, 
and  again  in  sections  67  and  70.  So  actions  by  trustees  to  set 
aside  fraudulent  transfers  are  referred  to  in  several  sections;  and 
this  is  true  of  other  provisions.  To  meet  this  difficulty,  which 
rendered  a  perfect  classification  impossible,  cross-references  will 
be  found;  and  an  unusually  comprehensive  index  will  serve  as  a 
further  guide. 

It  will  be  observed  that  in  repeated  instances  there  is  a  conflict 
between  the  decisions  here  compiled.  It  is  quite  alien  to  the  pur- 
pose of  this  work  to  weigh,  reconcile  or  distinguish  such  opinions. 
The  reader  will  bear  in  mind  that  for  the  most  part  the  rules  of 
equity  jurisprudence  govern  proceedings  in  bankruptcy,  and  will 
apply  the  principle  that  in  such  cases  the  decision  is  limited  by  the 
particular  facts  in  the  case.  I^othing  is  here  attempted  except  a 
reference  to  the  authority. 

It  is  not  to  be  predicated  of  any  work  of  this  character  that 
it  will  be  free  from  imperfections;  but  the  conviction  is  coniidently 
expressed  that  the  opinions  of  the  federal  courts  on  the  subject  of 
bankruptcy  have  been  exhaustively  collated  and  accurately  digested, 
and  that  the  work  will  be  of  considerable  assistance  to  the  bench 
and  bar,  and  equally  to  students,  in  advising  them  of  the  estab- 
lished principles  of  jurisprudence  respecting  this  important  subject. 

The  editor  desires  to  acknowledge  the  assistance  of  Hon.  Alex. 
C.  Botkin,  chairman  of  the  Commission  to  Revise  and  Oodify  the 
Criminal  and  Penal  L^ws  of  the  United  States,  who  rendered 
such  services  as  his  official  duties  would  permit  in  the  preparation 
and  arrangement  of  the  notes. 

New  York,  Dec.  20,  1898. 


INTRODUCTORY. 


The  etymology  of  the  word  "  bankruptcy  "  carries  us  to  Florence 
when  it  occupied  a  prominent  place  among  the  commercial  cities  of 
the  world.  It  was  the  custom  there,  when  a  merchant  failed  tO'  pay 
his  debts,  to  break  his  bench  or  counter,  and  to  that  usage  is  to  be 
traced  the  derivation  of  the  word  that  has  come  to  be  attached  to 
systems  of  legislation  that  possess  no  slight  importance  in  the 
history  of  the  race. 

It  should  be  here  stated,  however,  that  laws  respecting  insolvency, 
or  the  willful  refusal  of  debtors  to  discharge  their  obligations,  are 
older  than  the  word.  Such  ordinances  date  back  at  least  to  the 
Draconian  code,  which  was  in  force  six  centuries  before  the 
Christian  era,  when  Florence  was  a  village  of  huts  on  the  marshes 
of  the  Amo.  The  Twelve  Tables  dealt  with  this  subject  with  char- 
acteristic severity,  and  among  other  provisions  permitted  creditors 
to  dismember  the  body  of  their  debtor. 

But  "  bankruptcy "  has  a  more  restricted  signification.  Its 
germinal  principle  is  to  be  found  in  the  cessio  bonormn  of  the 
Roman  law  during  the  time  of  Oaesax.  Under  its  more  humane 
provisions,  the  debtor  who  surrendered  all  of  his  goods  to  his 
creditors  was  relieved  of  the  harsh  penalties  of  the  older  systems, 
and,  in  the  course  of  time,  they  were  further  mitigated  by  dis- 
charging him  of  his  obligations.  This  is  the  distinguishing  feature 
of  modem  bankruptcy. 

The  first  English  law  on  this  subject  was  enacted  in  1542  during 
the  reign  of  Henry  VIII.  It  was  essentially  a  penal  statute. 
Debtors  who  fied  the  kingdom  or  concealed  themselves  were  made 
criminals,  and  their  effects  were  seized  and  distributed  among  their 


6"  Intboductobt. 

creditors  witkout  extinguishing  their  obligations.  These  provisions 
were  applied  to  aU  who  "  craftily  obtaining  into  their  hands  great 
substance  of  other  men's  goods,  do  suddenly  flee  to  parts  unknown, 
or  keep  their  houses,  not  minding  to  pay,  or.  return  to  pay,  but  at 
their  own  wills  and  pleasures  consume  the  substance  obtained  by 
credit  from  other  men  for  their  own  pleasure  and  delicate  living, 
against  all  reason,  equity  and  good  conscience." 

Under  this  statute  the  administration  of  the  estates  of  bankrupts 
was  devolved  immediately  upon  the  Lord  Chancellor  and  other 
high  officers.  This  tended  to  fix  a  principle  that  it  may  be  profit- 
able to  call  to  the  attention  of  the  reader,  viz.,  that  jurisdiction  un- 
der laws  respecting  bankruptcy  was  exercised  in  conformity  to  the 
rules  of  equity.  The  practice  was  preserved  after  the  adoption  of 
the  first  amendment,  which  occurred  in  the  time  of  Elizabeth.  It 
made  an  important  change  in  procedure  by  authorizing  the  Lord 
Chancellor  to  appoint  commissioners  who  should  take  possession  of 
the  property  of  the  bankrupt  and  dispose  of  it  for  the  benefit  of 
creditors. 

As  we  have  stated,  the  Court  of  Chancery  retained  its  super- 
visory jurisdiction,  and  equitable  principles  still  obtained  in  the 
administration  of  estates.  But  the  Statute  of  Elizabeth  effected 
two  departures  from  the  previous  law  that  were  of  very  considerable 
moment.  By  the  first  of  these,  the  law  was  restricted  in  its  opera- 
tion to  traders;  and  this  feature  persisted  in  the  legislation  of 
England  until  1861,  and  was  copied  in  the  first  bankruptcy  act 
adopted  in  the  United  States,  and,  indeed,  in  the  law  of  1841, 
though  in  the  latter,  the  meaning  of  the  word  was  enlarged  to  in- 
clude bankers  and  some  other  classes. 

Again,  in  the  Statute  of  Elizabeth,  we  first  find  the  term,  "  acts 
of  bankruptcy."  Certain  acts  and  practices  were  designated  upon 
the  commission  of  which  a  debtor  could  be  declared  a  bankrupt,  and 
such  adjudication  was  fundamental  to  the  authority  of  the  com- 
mission to  seize  his  property  and  distribute  it.     Vari-ous  changes. 


Intkoductoey.  ij 

have  been  made  from  time  to  time  as  to  what  constitutes  sufficient 
grounds  for  such  a  decree,  but  we  have  no  knowledge  of  any  law  in 
England  or  this  country  that  does  not  make  some  "  act  of  bank- 
ruptcy "  a  prerequisite  to  the  exercise  of  the  jurisdiction  in  involun- 
tary proceedings. 

It  would  scarcely  be  of  interest  to  trace  the  evolution  of  pro- 
cedure through  the  successive  laws  of  England.  The  next  im- 
portant change  in  the  history  of  the  system  was  effected  by  the 
Statute  of  Anne  in  the  year  1706.  It  relieved  bankruptcy  of  the 
character  that  had  been  imposed  upon  it  by  previous  statutes,  that 
of  being  a  statutory  crime,  for  which  the  debtor's  person,  as  well  as 
his  property  could  be  seized;  but  it  did  much  more.  It  provided 
that  when  the  debtor  should  have  surrendered  all  of  his  property 
to  the  commission,  and  complied  with  all  of  the  requirements  of  the 
law,  he  should  receive  a  certificate  of  conformity,  and  that  this  cer- 
tificate, upon  being  confirmed  by  the  Lord  Chancellor,  should 
operate  as  a  discharge  of  his  person,  and  any  property  that  he  might 
subsequently  acquire,  from  all  debts  owing  by  him  at  the  time  of  his 
bankruptcy. 

This  humane  enactment  has  been  followed  in  all  subsequent  legis- 
lation on  the  subject.  It  recognized  that  the  object  of  the 
system  is  two-fold:  (1)  To  dedicate  the  property  of  an  insolvent 
debtor  to  the  ratable  payment  of  his  debts;  and  (2)  to  grant 
him  a  discharge  from  his  existing  obligations,  to  the  end  that  he 
may  be  restored  to  the  activities  of  life,  freed  from  the  burdens 
visited  upon  him  by  previous  misfortunes  in  business.  It  may  be 
justly  remarked  that  there  is  nothing  more  to  be  accomplished  by 
any  law  on  the  subject;  all  other  provisions  are  matters  of  detail 
more  or  less  effectively  designed  to  accomplish  these  ends. 

The  English  act  of  1825  was  principally  a  codification  of  existing 
laws  that  were  scattered  through  the  statute  books  of  more  than 
three  centuries  in  confusion  and  chaos. 


8  Ikteoductobt. 

Bari  apparent,  nantes  in  gurgite  vasto. 
At  the  same  time,  it  introduced  some  amendments.  These  were 
partly  directed  to  the  establishment  of  more  efficient  methods  for 
the  discovery  of  assets  and  the  realization  of  the  full  value  of  the 
bankrupt's  estate.  A  provision  was  also  inserted  for  the  adjustment 
and  proof  of  contingent  and  unliquidated  claims,  which  were  ex- 
eluded  under  previous  laws.  But  the  most  important  of  the  amend- 
ments effected  by  the  act  of  George  IV  was  the  establishment  of 
voluntary  bankruptcy.  Upon  this  subject,  Mr.  E-obson,  in  his 
"  Treatise  on  the  Law  of  Bankruptcy,"  says : 

This  statute  also  contained  a  provision  enabling  a  trader  to  be  accessory 
to  his  own  bankruptcy,  by  authorizing  a  commission  to  issue  at  the  in- 
stance of  a  creditor  upon  a  declaration  of  Insolvency  by  the  debtor;  or, 
in  other  words,  it  authorized  a  concerted  bankruptcy,  which  had 
previously  been  regarded  as  a  fraud  on  the  bankrupt  law.  The  prin- 
ciple of  this  provision  was  still  further  recognized  by  subsequent  statutes, 
to  the  extent  of  allowing  a  debtor  to  petition  for  an  adjudication  against 
himself.  The  policy  of  allowing  a  debtor  to  petition  for  adjudication 
against  himself  has  been  much  canvassed,  and  was  not  authorized  by 
the  Bankruptcy  Act,  1869,  although  It  allowed  a  declaration  of  insolvency 
to  be  filed  by  a  debtor  as  the  foundation  of  an  adjudication  against  him 
on  the  petition  of  a  creditor;  and  also  proceedings  to  be  instituted  by  a 
debtor  for  the  liquidation  of  his  affairs  In  the  same  manner  as  If  he  had 
become  bankrupt 

In  the  act  of  which  we  are  speaking  (1825),  we  find  the  first  in- 
troduction of  the  practice  of  relieving  the  estate  of  bankrupts  from 
the  jurisdiction  of  the  courts  by  compositions.  It  provided  that  the 
commission  might  be  superseded  when  a  specified  majority  of  cred- 
itors, in  number  and  amount,  signified  their  willingness  to  accept  a 
certain  percentage  of  their  claims.  This  law  was  infirm  in  accom- 
plishing the  end  sought,  and  unjust  in  its  operation  in  that  it  did  not 
telease  the  debtor  from  the  claims  of  dissenting  creditors. 

The  law  of  1831  established  the  Court  of  Bankruptcy,  consisting 
originally  of  four  judges  and  six  commissioners.  The  judges  were 
constituted  a  court  of  review,  and  provision  was  made  for  an  ap- 
peal from  it  to  the  Lord  Chancellor,  and  a  limited  appeal  from  him 


Introductory.  9 

to  the  House  of  Lords  on  matters  of  law  and  equity.  It  may  be 
deserving  of  remark  in  this  connection  that  our  District  Court,  in 
the  exercise  of  its  jurisdiction  in  bankruptcy,  is  a  distinct  court.  It 
was  so  decided  under  the  law  of  1867,  and  it  does  not  appear  that 
there  is  anything  in  the  present  act  that  affects  this  condition. 

We  have  now  witnessed  the  successive  introduction  in  the  laws  of 
England  of  the  essential  principles  of  modern  bankruptcy.  It  can 
not  be  desirable  for  the  American  reader  to  follow  step  by  step  the 
subsequent  legislation  that  has  mainly  been  addressed  to  reforming 
the  procedure.  The  statute  of  1861  was  the  earliest  to  repeal  the 
provision  which  confined  the  operation  of  the  law  to  traders.  The 
present  law  is  that  originally  enacted  in  1883,  and  amended  in  1890. 
It  is  more  severe  than  some  of  its  predecessors  in  the  conditions 
upon  which  a  debtor  is  entitled  to  receive  a  discharge. 

It  would  not  be  practicable,  even  if  it  were  profitable  to  consider 
at  length,  the  legislation  of  other  countries  on  this  subject.  The 
house  committee  on  the  judiciary  of  the  Fifty-fourth  Congress,  in 
a  report  of  notable  value,  as  the  result  of  exhatistive  researches, 
gave  a  list  of  twenty-nine  countries  that  have  bankruptcy  laws, 
and  this  roster  included  all  of  the  great  nations  of  the  earth,  and 
many  of  the  smaller  ones,  from  Germany  with  a  population  of 
fifty  millions,  to  Costa  Rica  with  only  two  hundred  thousand.  The 
report  adds: 

The  committee  did  nat  ascertain  whether  or  not  there  is  a  bankruptcy 
law  in  Chile,  Colombia,  Dominican  Eepublic,  Hawaii,  Japan,  Korea,  Peru, 
Syria,  Switzerland,  or  Venezuela. 

Aside  from  China  and  the  United  States,  and  possibly  Japan,  there  are 
no  countries  of  any  considerable  Importance  but  what  have  bankruptcy 
laws. 

In  Guadeloupe  there  is  no  relief  whatever  for  a  bankrupt. 

In  Siam  "  there  are  no  bankruptcy  laws  as  we  understand  them. 
When  a  man's  assets  fall  short  of  his  liabilities,  he  either  compounds  with 
his  creditors  or  leaves  the  country  hurriedly.  If  taken,  his  own  person 
and  those  of  his  family  may  be  held  until  the  debt  be  paid." 

In  China  "  the  various  foreign  nationalities,  ececept  the  United  States,  have 
bankruptcy  laws  which  are  enforced  against  their  nationals,  those  of 


10  -  Inteoductory. 

Germany  being  very  strict,  the  others  perhaps  less  so.  *  *  *  There 
never  was  such  a  law  in  existence  among  the  Chinese  as  a  bankruptcy 
law." 

"All  delinquents  [in  China]  pass  into  the  dishonored  class  and  are  soon 
put  under  process  of  coercive  termination  of  a  business  career,  and  are 
subject  to  punishment  by  bamboo  blows." 

"  The  laws  against  bankrupts  [in  China]  are  theoretically  very  severe,  a 
failure  of  $1,500  to  $5,000  entailing  banishment,  and  from  $5,000  upward 
summary  decapitation.  No  distinction  is  made  between  fraudulent  bank- 
ruptcy and  unavoidable  ones." 

In  Russia  "  the  right  to  resume  depends  upon  the  good  will  of  the 
creditors.  If  a  compromise  is  effected,  the  bankrupt  may  at  once  resume, 
but  a  dissatisfied  creditor,  by  a  monthly  payment  of  $2.25,  can  keep  the 
bankrupt  imprisoned  until  the  debt  is  paid.  Fraudulent  bankrupts  are 
punished  by  banishment  to  Siberia.  There  are  no  relief  acts  in  bank- 
ruptcy." 

In  Liberia  "  when  a  person  in  business  fails  he  must  maJie  an  assign- 
ment of  all  his  property,  except  one  bed,  one  table,  two  chairs,  cooking 
utensils,  and  so  much  wearing  apparel  as  is  privileged  from  execution, 
for  the  benefit  of  his  creditors  and  *  *  *  make  oath  that  his  assign- 
ment is  true  and  correct;  and  must  enter  into  bond,  with  good  sureties, 
and  he  can  not  resume  business  for  three  years  after  the  assignment." 

When  a  person  fails  in  Switzerland  he  loses  his  civil  rights. 

Legislation  in  the  United  States  respecting  insolvent  debtors  lias 
been  attended  with  great  difficulty  and  no  slight  confusion  on  ac- 
count of  our  peculiar  system  of  States,  and  the  dual  sovereignty 
consequent  thereupon.  The  Constitution  conferred  upon  Congress 
the  power  to  pass  uniform  laws  on  the  subject  of  bankruptcies;  but 
it  remained  for  the  courts  to  determine  what  ejBfect  this  provision 
has  upon  the  authority  of  State  legislatures.  In  the  case  of  Sturges 
V.  Crowinshield  (4  Wheaton,  122),  the  right  of  a  State  to  pass  a 
bankrupt  law  was  considered,  and  this  has  since  been  recognized  as 
the  leading  authority  on  the  question. 

In  1811,  the  State  of  New  York  had  passed  a  law  "  for  the  benefit 
of  insolvent  debtors  and  their  creditors,"  which  provided  for  the  dis- 
charge of  the  debt  upon  a  surrender  by  the  debtor  of  his  property; 
and  it  was  contended  that  this  was  in  effect  a  bankrupt  law,  and  as 
such  was  not  within  the  legislative  power  of  the  state  under  the 
federal  Constitution.    Chief  Justice  Marshall,  delivering  the  opin- 


Intkoductoky.  11 

ion  of  the  court,  pointed  out  the  close  relation  between  bankrupt 
laws  and  insolvent  laws,  and  the  difficulty  of  defining  the  distin- 
guishing characteristics  of  each.  He  held,  however,  that  the  dif- 
ference was  not  material,  and  that  the  states  had,  in  the  absence  of 
legislation  by  Congress,  the  power  to  enact  bankruptcy  laws. 

This  proposition  has  ever  since  been  followed.  Insolvency  laws, 
varying  widely  in  their  provisions,  have  found  places  on  the  statute 
books  of  most  of  the  states.  So  long  as  there  is  in  force  no  act  of 
Congress  on  bankruptcy,  these  laws  are  allowed  full  effect,  except, 
of  course,  that  they  can  have  no  efficacy  as  to  creditors  outside  the 
jurisdiction  of  the  states  in  which  they  are  respectively  enacted. 
When,  however.  Congress  passes  a  bankrupt  act,  its  effect  is  to  sus- 
pend the  operation  of  state  laws  that  conflict  therewith,  or  tend  to 
withdraw  the  administration  of  the  estates  of  bankrupts  from  the 
federal  courts.  In  other  words,  the  power  of  Congress  over  the 
subject,  when  exercised,  is  supreme  and  exclusive. 

The  first  law  of  Congress  under  the  authority  conferred  by  the 
Constitution  was  passed  in  1800.  It  represents  the  exact  stage  that 
the  legislation  of  the  English  Parliament  on  the  subject  had  reached 
at  the  date  of  its  passage;  that  is,  between  the  Statute  of  Anne  and 
the  Statute  of  George  IV.  It  provided  only  for  involuntary  pro- 
ceedings, as  it  was  twenty-four  years  later  that  the  law  was  amended 
in  England  so  as  to  permit  a  debtor  to  be  adjudged  a  bankrupt  on 
his  own  petition.     Again,  it  was  limited  in  its  operation  to  traders. 

It  may  be  deserving  of  remark  in  passing  that  the  question  was 
once  mooted  whether  it  was  competent  for  Congress  to  legislate 
upon  the  bankruptcy  of  others  than  traders.  It  was  contended  in 
behalf  of  the  negative  of  this  question  that  such  a  limitation  ex- 
isted in  the  laws  of  England  when  the  Constitution  was  adopted,  and 
that  it  attached  to  the  power  vested  in  Congress.  Mr.  Hotchkiss,  in 
his  valuable  article  on  "  Bankruptcy  Laws,  Past  and  Present,"  men- 
tions that  in  1817,  Judge  Livingston  expressed  a  doubt  on  this  sub- 
ject.    Later,  however,  the  doubt  was  solved  by  conclusive  decisions 


13  Ijstteoductory. 

to  the  effect  that  the  authority  of  Congress  over  bankruptcies  em- 
powered it  to  pass  laws  applicable  to  all  classes  of  persons  that  it 
should  choose  to  embrace  within  their  provisions. 

The  law  of  1800  was  in  operation  only  a  little  over  two  years, 
being  repealed  in  1803.  It  was  thirty-eight  years  later  that  the 
next  act  was  passed.  The  panic  of  183*7  had  filled  the  country 
with  commercial  wrecks,  and  there  was  a  strong  sentiment,  which 
operated  slowly,  but  at  length  effectively  upon  Congress  in  favor 
of  legislation  for  the  relief  of  debtors.  The  result  was  the  statute 
of  1841.  It  was  limited  to  traders,  but,  as  already  stated,  the  word 
was  made  to  include  bankers,  brokers,  factors,  underwriters  and 
marine  insurers.  It  also  introduced  the  principle  of  voluntary 
bankruptcies,  which  had  been  established  in  England  by  the  law  of 
1825. 

The  statute  of  1841  was  repealed  by  the  same  Congress  that 
passed  it.  Wliatever  its  effect  may  have  been  in  accomplishing  the 
objects  for  which  it  was  designed,  it  served  the  useful  purpose  of 
eliciting  from  the  bench  opinions  of  great  value  in  fixing  the  funda- 
mental principles  of  banliruptcy  jurisprudence.  Thereafter  for  a 
quarter  of  a  century,  unfortunate  debtors  were  left  to  such  relief 
as  the  insolvency  laws  of  the  states  could  afford  them,  and  these 
came  to  be  the  agencies  of  monstrous  frauds,  aside  from  the  infirm- 
ities and  inequalities  that  were  inseparably  incident  to  their  limited 
operation. 

It  required  another  financial  crisis  to  stimulate  Congress  to  ac- 
tion. This  occurred  in  1866,  and  a  year  later  there  was  enacted 
the  only  bankrupt  act  that  has  remained  in  force  for  any  consider- 
able period.  It  was  little  else  than  a  copy  of  the  insolvency  law  of 
Massachusetts,  which  had  been  on  the  statute  books  of  that  state 
for  thirty  years,  a  fact  that  greatly  served  to  ripen  its  provisions 
and  proceedings.  Nevertheless  the  act  of  1867  was  subjected  to 
repeated  amendments,  which  were  codified,  with  radical  changes, 
in  1874.     As  thus  re-enacted  it  will  be  found  in  the  Revised  Stat- 


Introbuctort.  13 

utes  of  1878,  though  many  of  its  sections  are  there  dismembered, 
in  the  interest,  supposably,  of  a  more  orderly  arrangement  of  its  pro- 
visions. 

A  schedule  of  the  titles  of  these  acts  and  the  dates  of  their  ap- 
proval, is  here  given: 

"  An  act  to  establish  a  uniform  system  of  bankruptcy  through- 
out the  United  States."  Approved  March  2,  1867.  14  Stat.  L. 
517. 

"  An  act  in  amendment  of  an  act  entitled  '  An  act  to  establish  a 
uniform  system  of  bankruptcy  throughout  the  United  States,  ap- 
proved March  2,  1867.'  "  Approved  July  27,  1868.  15  Stat.  L. 
227. 

"  An  act  to  amend  an  act  entitled  '  An  act  to  establish  a  uniform 
system  of  bankruptcy  throughout  the  United  States,'  approved 
March  2,  1867."    Approved  June  30,  1870.   16  Stat.  L.  173. 

"  An  act  in  amendnient  of  the  act  entitled  '  An  act  to  establish 
a  uniform  system  of  bankruptcy  throughout  the  United  States.'  " 
Approved  July  14,  1870.      16  Stat.  L.  276. 

"  An  act  to  amend  an  act  entitled  '  An  act  to  establish  a  uniform 
system  of  bankruptcy  throughout  the  United  States.'  "  Approved 
June  8,  1872.    17  Stat.  L.  334. 

"  An  act  to  amend  an  act  entitled  '  An  act  to  establish  a  uniform 
system  of  bankruptcy  throughout  the  United  States,  approved 
March  2,  1887.'  "    Approved  February  13,  1873.   17  Stat.  L.  436. 

"  An  act  to  declare  the  true  intent  and  meaning  of  the  act  ap- 
proved June  8,  1872,  amendatory  of  the  general  bankrupt  law." 
Approved  March  3,  1873.    17  Stat.  L.  577. 

"  An  act  to  amend  and  supplement  an  act  entitled  'An  act  to 
establish  a  uniform  system  of  bankruptcy  throughout  the  United 
States,'  approved  March  2,  1867,  and  for  other  purposes."  Ap- 
proved June  22,  1874.   18  Stat.  L.  178. 

"  An  act  to  correct  errors  and  supply  omissions  in  the  Revised 
Statutes  of  the  United  States."  Approved  February  18,  1875.  18i 
Stat.  L.  320. 


14  Introductoky. 

"  An  act  concerning  cases  in  bankruptcy  commenced  in  the  Su- 
preme Courts  of  the  several  territories  prior  to  the  22d  day  of 
June,  1874,  and  now  undetermined  therein."  Approved  April  14, 
1876.     19  Stat.  L.  33. 

"  An  act  to  perfect  the  revision  of  the  Statutes  of  the  United 
States,  and  of  the  statutes  relating  to  the  District  of  Columbia." 
Approved  February  27,  1877.  19  Stat.  L.  252. 

"  An  act  to  repeal  the  bankrupt  law."  Approved  June  7,  1878. 
20  Stat.  L.  99. 

The  law  of  1867,  as  the  several  acts  are  called  that  were  built 
up  on  the  statute  enacted  in  that  year,  was  very  voluminous  and 
comprehensive.  It  defined  at  great  length  what  should  be 
deemed  to  constitute  acts  of  bankruptcy,  and  included  among  them 
defaults  in  the  payment  of  commercial  paper  for  a  certain  period. 
The  granting  of  discharges  was  guarded  with  severe  conditions,  and 
in  operation  many  debtors,  after  surrendering  their  property  for 
the  benefit  of  their  creditors,  were  denied  a  release  from  their  ob- 
ligations. While  this  doubtless  aided  in  the  prevention  of  frauds, 
it  can  not  have  failed  to  work  harshly  in  many  instances. 

The  main  sources  of  complaint,  however,  were  not  addressed  to 
the  features  just  mentioned.  The  first  was  that  the  execution  of 
the  law  was  often  attended  with  the  most  serious  and  disastrous 
delays.  The  administration  of  estates  was,  in  some  cases,  protracted 
over  a  term  of  years,  greatly  to  the  disadvantage  of  creditors  as  a 
matter  of  course,  and  equally  to  the  annoyance  of  the  debtor  when 
he  was  thereby  prevented  from  securing  his  discharge.  It  is 
scarcely  profitable  to  inquire  at  this  time  whether  this  was  due  to 
the  law  itself,  or  to  the  delinquencies  of  those  to  whom  its  admin- 
istration was  intrusted. 

A.nother  grievance  was  the  excessive  fees  and  expenses  of  admin- 
istration. An  examination  of  the  schedule  of  allowances  to  officers 
will  scarcely  convey  the  impression  that  they  were  disproportionate 
to  the  services;  but  it  is  quite  conceivable  that  they  were  often  mul- 


Introductory.  16 

tiplied  to  an  outrageous  extent.  The  payment  of  attorneys'  fees 
from  the  fund  to  be  distributed  rested  in  the  discretion  of  the  court; 
and  it  is  reasonable  to  believe  that  judges  are  not  so  far  removed 
from  the  infirmities  common  to  humanity  but  that  there  were 
numerous  instances  of  favoritism  to  the  serious  prejudice  of  the 
rights  of  creditors.  At  the  same  time,  there  is  presumably  good 
reason  for  the  remark  of  Judge  Dillon,  quoted  elsewhere  in  this 
volume,  that  creditors  were  themselves  often  chiefly  to  blame,  in 
their  lack  of  vigilance  and  activity,  for  the  extortionate  expenses  of 
administering  estates. 

The  law  of  186Y  was  repealed  by  an  act  that  took  effect  on  the 
1st  of  September,  1878.  It  was  not  many  years  later  before  an 
agitation  commenced  for  another  bankruptcy  act;  but  it  made  slow 
progress  in  exciting  any  popular  sentiment  in  that  behalf.  Mr. 
Jay  L.  Torrey,  of  the  St.  Louis  bar,  was  employed  by  certain  com- 
mercial bodies  to  frame  a  law,  and  he  bestowed  very  diligent  and 
intelligent  labors  upon  the  performance  of  that  duty.  The  bill 
which  he  drafted  was  introduced  in  several  successive  Congresses, 
but  always  to  encounter  opposition  of  the  most  formidable  char- 
acter. 

While  the  bill  was  drawn  with  creditable  precision,  and  may  be 
justly  called  a  scientifi.c  system  of  bankruptcy,  it  was  regarded  by 
many  as  manifesting  more  consideration  for  creditors  than  debtors. 
This  view  operated  effectively  on  the  fears  of  many  Congressmen, 
and  there  was  little  prospect  that  it  could  secure  favorable  action. 
At  all  events,  while  it  elicited  debate  of  considerable  interest,  it 
made  slight  progress  toward  a  place  upon  the  statute  books.  Again 
a  panic  interposed,  and  the. distresses  that  followed  proved  an  in- 
fluence of  great  power  in  affecting  public  sentiment. 

At  the  extra  session  of  the  Fifty-fifth  Congress,  on-  the  22d  of 
March,  1897,  Senator  Lindsay,  of  Kentucky,  introduced  the 
Torrey  bill,  and  it  was  referred  to  the  committee  on  the  judiciary. 
On  the  following  day,  the  committee  reported  it  back,  to  the  Senate, 


16  iNTKODUCTOKY. 

and  its  consideration  commenced.  It  was  debated  from  time  to 
time  until  the  22d  of  April.  On  that  day,  an  amendment  in  the 
nature  of  a  substitute  was  offered  by  Senator  Nelson,  of  Minnesota, 
and  was  agreed  to  by  a  vote  of  34  to  22.  The  bill  as  thus 
amended  thereupon  passed  the  Senate  with  only  eight  votes  in  the 
negative. 

The  Nelson  substitute  provided  for  voluntary  bankruptcy  to  all 
petitioning  debtors,  except  corporations,  owing  debts  to  the  amount 
of  $200,  and  for  involuntary  bankruptcy  in  proceedings  against 
bankers,  brokers,  merchants,  traders  and  manufacturers  owing  debts 
to  the  amount  of  $500,  corporations  being  here  also  expressly  ex- 
cepted. It  limited  acts  of  bankruptcy  to  two,  viz.,  fraudulent 
transfers  and  voluntary  preferences  while  insolvent,  whereas  the 
Torrey  bill  enimierated  no  less  than  nine.  All  the  provisions  of  the 
latter  that  had  provoked  criticism  for  their  supposed  severity  to 
debtors  were  carefully  eliminated. 

On  April  23,  1897,  the  bill  as  passed  by  the  Senate  was  sent  to 
the  House  of  Representatives  and  referred  to  the  committee  on  the 
judiciary,  where  it  remained  without  action  until  the  second  session 
of  the  Tifty-fifth  Congress.  On  December  6,  1897,  Hon.  D.  B. 
Henderson,  of  Iowa,  chairman  of  the  committee  on  the  judiciary, 
introduced  the  Torrey  bill  in  the  House,  and  it  was  referred  to  the 
same  committee.  Ten  days  later  a  majority  of  the  committee  re- 
ported the  Senate  bill  with  a  recommendation  that  all  after  the 
enacting  clause  be  stricken  out,  and  that  the  Torrey  bill,  with 
amendments,  be  substituted.  Four  members  of  the  committee 
presented  a  minority  report  adverse  to  the  substitution. 

The  proposed  amendments  to  the  Torrey  bill  were  eighty-three 
in  number,  and  some  of  them  of  a  very  radical  character.  The 
suspension  of  the  payment  of  conunercial  paper  for  thirty  days,  as 
an  act  of  bankruptcy,  was  stricken  out.  The  provision  was  inserted 
requiring  petitioning  creditors  in  involuntary  proceedings  to  give  a 
bond  for  the  protection  of  the  alleged  bankrupt  as  to  costs  and  dam- 


Introduotobt.  II? 

ages  occasioned  by  tke  wrongful  institution  of  such,  proceedings. 
More  liberal  provisions  were  inserted  respecting  arrests,  discharges, 
offenses  and  liens,  and  some  reduction  of  the  fees  of  officers  was  also 
made. 

The  debate  proceeded  until  February  19,  1898.  Then  Mr. 
Underwood,  of  Alabama,  moved  to  strike  out  the  involuntary 
features  of  the  bill,  so  as  to  confine  its  operation  to  the  adjudication 
of  debtors  upon  their  own  petitions.  The  amendment  was  defeated 
by  a  majority  of  18,  and  the  Henderson  bill  was  thereupon  agreed 
to,  yeas  153,  nays  114.  Mr.  Terry,  of  Arkansas,  moved  to  rer 
commit,  with  instructions  to  the  committee  to  report  amendments 
striking  out  the  involuntary  provisions  and  limiting  the  operation 
of  the  act  to  a  period  of  two  years  from  its  passage.  The  motion 
was  lost,  and  the  bill,  as  amended,  passed  the  House  by  a  vote  of 
159  to  125.  The  record  shows  that  the  opposition  came  almost  ex- 
clusively from  the  West  and  South. 

What  may  be  called  for  convenience  the  Henderson  bill  was  sent 
to  the  Senate,  and  on  March  3,  1898,  was  disagreed  to  by  that  body 
and  a  conference  requested.  Senators  Hoar,  Nelson  and  Lindsay 
were  appointed  conferees  on  the  part  of  the  Senate,  and  Messrs. 
Henderson,  E^y  and  Terry,  on  the  part  of  the  House.  On  June 
15, 1898,  the  conference  committee,  Mr.  Terry  dissenting,  reported 
the  bill  with  amendments  of  considerable  importance.  This  report 
was  agreed  to  on  June  24th  by  the  Senate  by  a  vote  of  43  yeas  and, 
13  nays,  and  on  June  28th  by  the  House,  yeas  134,  nays  53.  The 
bill  was  approved  by  the  President  on  the  1st  of  July,  1898. 

It  is  not  deemed  desirable  to  enter  upon  an  analysis  of  the  act; 
but  it  may  not  be  out  of  place  to  call  attention  to  a  few  of  its 
features.  The  basis  of  bankruptcy  may  be  said  to  be  insolvency. 
In  the  course  of  some  hundreds  of  years  the  courts  have  settled 
the  meaning  of  that  word  to  be  the  condition  of  a  debtor  who  is  uii.  •■ 
able  to  pay  his  debts  as  they  mature.  The  new  law  sacrifices  this 
definition  and  expressly  enacts  a  new  one,  namely:      "A  person 


18  ISTTEODUCTOBT. 

shall  be  deemed  insolvent  within  the  provisions  of  this  act  when- 
ever the  aggregate  of  his- property,  exclusive  of  any  property  which 
he  may  have  conveyed,  transferred,  converted,  or  removed,  with 
intent  to  defraud,  hinder,  or  delay  his  creditors,  shall  not,  at  a  fair 
valuation,  be  suilicient  in  amount  to  pay  his  debts."  It  is  to  be 
feared  that  this  definition  may  afEord  further  work  for  the  courts. 

The  acts  of  bankruptcy,  as  divided  and  numbered  in  the  law 
itself,  are  five,  but  they  are  in  fact  reducible  to  three,  viz. :  fraudu- 
lent transfers,  voluntary  preferences  (by  the  conveyance  of  prop- 
erty or  suffering  legal  proceedings),  and  a  general  assignment  for 
the  benefit  of  creditors.  It  is  also  made  an  act  of  bankruptcy  for 
a  person  to  have  "  admitted  in  writing  his  inability  to  pay  his  debts 
and  his  willingness  to  be  adjudged  a  bankrupt  on  that  ground;"  but 
that  contemplates  only  the  institution  of  voluntary  proceedings  by 
the  debtor  himself.  The  act  of  1867  specified  ten  acts  of  bank- 
ruptcy, and  the  law  of  1841,  five. 

The  provisions  respecting  voluntary  bankruptcy  are  limited  to 
natural  persons,  and  corporations  are  expressly  excluded  from  their 
benefit.  Involuntary  proceedings  are  confined  to  corporations  "  en- 
gaged principally  in  manufacturing,  trading,  printing,  publishing, 
or  mercantile  pursuits."  This  may  be  supposed  to  have  been  in- 
tended to  exclude  railroad  companies;  but  it  may  be  questioned  to 
which  of  these  classes  mining  companies,  for  example,  can  be  re- 
ferred. Farmers  and  wage-earners  are  expressly  excepted  from 
persons  who  are  subject  to  adjudication  as  bankrupts  on  the  petition 
of  their  creditors. 

A  notable  feature  of  the  present  law  is  the  jealousy  with  which 
it  guards  the  jurisdiction  of  state  courts.  Under  the  act  of  1867 
it  was  finally  determined  that  assignees  in  bankruptcy,  by  reason 
of  their  official  or  representative  character,  could  maintain  actions 
in  courts  of  the  United  States  to  recover  property  belonging  to  the 
estate,  though  it  should  be  added  that  this  conclusion  was  not 
reached  without  some  conflicts  of  opinion  on  the  part  of  the  federal 


Introductoey.  '19 

judiciary.  The  second  paragrapli  of  section  23  of  the  act  of  1898 
provides  that  such  suits  can  only  be  brought  in  the  courts  in  which 
the  bankrupt  might  have  brought  them. 

It  follows  that  in  the  absence  of  the  conditions  upon  which  the 
jurisdiction  of  federal  courts  vests,  such  as  diversity  of  residence, 
the  trustee  is  relegated  to  the  courts  of  the  states.  It  will  be  of 
interest  to  observe  whether  any  evils  will  result  from  this  provision. 
It  is  clearly  impossible  for  Congress  to  impose  jurisdiction  upon 
tribunals  constituted  by  the  authority  of  the  states.  If  —  though  it 
is  not  to  be  presumed  that  the  danger  is  considerable  —  a  state 
com^  should  refuse  to  entertain  an  action  brought  by  a  trustee  in 
bankruptcy,  he  would  be  left  without  a  forum  and  emasculated  of 
means  to  collect  the  assets  of  his  bankrupt. 

We  disclaim  any  purpose  in  the  above  to  criticise  the  law  or  to 

predict  any  failure  to  realize  its  useful  and  beneficent  purposes. 

Our  conclusions  can  be  expressed  in  the  language  of  Mr.  Hotchkiss 

in  the  article  previously  mentioned: 

Such  is  the  latest  product  of  bankruptcy  legislation,  genealogically- 
examined.  Starting  with  the  Torrey  bill,  notable  for  its  too  harsh  pro^ 
visions,  proceeding  through  the  Nelson  bill,  as  inadequate  in  procedure 
as  it  was  lacking  in  a  broad  grasp  of  the  dangers  to  commercial  morality, 
which  had  to  be  avoided,  and  finally  developing  Into  a  compromise  be- 
tween the  latter  and  the  Henderson  substitute,  a  measure  which  seemed 
to  find  the  golden  mean,  it  goes  on  the  books  as  a  law  for  temporary 
relief,  not  for  permanent  control.  Many  assert  that  this  is  as  it  should 
be.  The  crying  need  for  its  passage  was  that  the  unfortunates,  who 
have  been  In  bondage  to  debts  and  judgments  born  of  the  late  period  of 
depression  might  be  free  again;  and  the  country  will  quickly  feel  the 
effects  of  the  restored  energy  of  the  tens  of  thousands  who  have  gone 
down  in  recent  wrecks.  So  far  the  law  is  expressive  not  only  of  our, 
humanity,  but  of  our  commercial  common  sense. 


THE  BANKRUPTCY  LAW. 


OHAPTER  I. 

Definitions. 

Section  1.  Meaning  of  Words  and  Phrases. —  (a.)  The  words  and 
phrases  used  in  this  Act  and  in  proceedings  pursuant  hereto  shall, 
unless  the  same  be  inconsistent  with  the  context,  be  construed  as 
follows: 

(1.)  "A  person  against  whom  a  petition  has  been  iiled  "  shall  include 
a  person  who  has  filed  a  voluntary  petition; 

(3.)  "Adjudication"  shall  mean  the  date  of  the  entry  of  a  decree 
that  the  defendant,  in  a  bankruptcy  proceeding,  is  a  bankrupt,  or  if 
such  decree  is  appealed  from,  then  the  date  when  such  decree  is  finally 
confirmed; 

(3.)  "Appellate  courts  "  shall  include  the  circuit  courts  of  appeals 
of  the  United  States,  the  supreme  courts  of  the  Territories,  and  the 
Supreme  Court  of  the  United  States; 

(4.)  "  Bankrupt "  shall  include  a  person  against  whom  an  involun- 
tary petition  or  an  application  to  set  a  composition  aside  or  to  revoke 
a  discharge  has  been  filed,  or  who  has  filed  a  voluntary  petition,  or 
who  has  been  adjudged  a  bankrupt; 

(5.)  "  Clerk  "  shall  mean  the  clerk  of  a  court  of  bankruptcy; 

(6.)  "  Corporations  "  shall  mean  all  bodies  having  any  of  the  powers 
and  privileges  of  private  corporations  not  possessed  by  individuals  or 
partnerships,  and  shall  include  limited  or  other  partnership  associa- 
tions organized  under  laws  making  the  capital  subscribed  alone  respon- 
sible for  the  debts  of  the  association; 

(7.)  "  Court "  shall  mean  the  court  of  bankruptcy  in  which  the 
proceedings  are  pending,  and  may  include  the  referee; 

(8.)  "  Courts  of  bankruptcy  "  shall  include  the  district  courts  of  the 
United  States  and  of  the  Territories,  the  supreme  court  of  the  District 
of  Columbia,  and  the  United  States  court  of  the  Indian  Territory,  and 
of  Alaska; 


22  The  Bakkruptcy  Law. 

(9.)  "  Creditor  "  shall  include  anyone  who  owns  a  demand  or  claim 
provable  in  bankruptcy,  and  may  include  his  duly  authorized  agent, 
attorney,  or  proxy; 

(10.)  "  Date  of  bankruptcy,"  or  "  time  of  bankruptcy,"  or  "  com- 
mencement of  proceedings,"  or  "  bankruptcy,"  with  reference  to  time, 
shall  mean  the  date  when  the  petition  was  filed; 

(11.)  "  Debt "  shall  include  any  debt,  demand,  or  claim  provable  in 
bankruptcy; 

(12.)  "Discharge"  shall  mean  the  release  of  a  bankrupt  from  all 
of  his  debts  which  are  provable  in  bankruptcy,  except  such  as  are  ex- 
cepted by  this  Act; 

(13.)  "  Document "  shall  include  any  book,  deed,  or  instrument  in 
writing; 

(14.)  "  Holiday  "  shall  include  Christmas,  the  Fourth  of  July,  the 
Twenty-second  of  February,  and  any  day  appointed  by  the  President 
of  the  United  Statics  or  the  Congress  of  the  United  States  as  a  hohday 
or  as  a  day  of  public  fasting  or  thanksgiving; 

(15.)  A  person  shall  be  deemed  insolvent  within  the  provisions  of 
this  Act  whenever  the  aggregate  of  his  property,  exclusive  of  any  prop- 
erty which  he  may  have  conveyed,  transferred,  concealed,  or  removed, 
or  permitted  to  be  concealed  or  removed,  with  intent  to  defraud,  hinder 
or  delay  his  creditors,  shall  not,  at  a  fair  valuation,  be  sufficient  in 
amount  to  pay  his  debts; 

(16.)  "  Judge  "  shall  mean  a  Judge  of  a  court  of  bankruptcy,  not 
including  the  referee; 

(17.)  "  Oath  "  shall  include  affirmation; 

(18.)  "  Officer  "  shall  include  clerk,  marshal,  receiver,  referee,  and 
trustee,  and  the  imposing  of  a  duty  upon  or  the  forbidding  of  an  act  by 
any  officer  shall  include  his  successor  and  any  person  authorized  by  law 
to  perform  the  duties  of  such  officer; 

(19.)  "Persons"  shall  include  corporations,  except  where  otherwise 
specified,  and  officers,  partnerships,  and  women,  and  when  used  with 
reference  to  the  commission  of  acts  which  are  herein  forbidden  shall 
include  persons  who  are  participants  in  the  forbidden  acts,  and  the 
agents,  officers,  and  members  of  the  board  lof  directors  or  trustees,  or 
other  similar  controlling  bodies  of  corporations; 

(20.)  "  Petition  "  shall  mean  a  paper  filed  in  a  court  of  bankruptcy 
or  with  a  clerk  or  deputy  clerk  by  a  debtor  praying  for  the  benefits  of 
this  Act,  or  by  creditors  alleging  the  commission  of  an  act  of  bank- 
ruptcy by  a  debtor  therein  named; 


Definitions.  23 

(21.)  "  Eeferee  "  shall  mean  the  referee  who  has  jurisdiction  of  the 
case  or  to  whom  the  case  has  been  referred,  or  anyone  acting  in  his 
stead; 

(33.)  "  Conceal "  shall  include  secrete,  falsify,  and  mutilate; 

(33.)  "  Secured  creditor  "  shall  include  a  creditor  who  has  security 
for  his  debt  upon  the  property  of  the  bankrupt  of  a  nature  to  be  assign- 
able under  this  Act,  or  who  owns  such  a  debt  for  which  some  indorser, 
surety,  or  other  persons  secondarily  liable  for  the  bankrupt  has  such 
security  upon  the  bankrupt's  assets; 

(34.)  "  States  "  shall  include  the  Territories,  the  Indian  Territory, 
Alaska,  and  the  District  of  Columbia; 

(25.)  "  Transfer  "  shall  include  the  sale  and  every  other  and  differ- 
ent mode  of  disposing  of  or  parting  with  property,  or  the  possession  of 
property,  absolutely  or  conditionally,  as  a  payment,  pledge,  mortgage, 
gift,  or  security; 

(26.)  "  Trustee  "  shall  include  all  of  the  trustees  of  an  estate; 

(37.)  "  Wage-earner  "  shall  mean  an  individual  who  works  for  wages, 
salary,  or  hire,  at  a  rate  of  compensation  not  exceeding  one  thousand 
five  hundred  dollars  per  year; 

(38.)  Words  importing  the  masculine  gender  may  be  applied  to  and 
include  corporations,  partnerships,  and  women; 

(39.)  Words  importing  the  plural  number  may  be  applied  to  and 
mean  only  a  single  person  or  thing; 

(30.)  Words  importing  the  singular  number  may  be  applied  to  and 
mean  several  persons  or  things. 

(15)  Judge  Baldwin  of  the  district  court  of  Nevada  charged  a  jury  under 
the  act  of  18S7,  as  follows:  "  If  you  believe  from  the  evidence  that  "W.'s 
property,  if  sold  on  that  day  "  (the  day  when  the  alleged  act  of  bank- 
ruptcy was  committed),  "  would  not  have  produced  enough  to  pay  his 
debts,  then  I  charge  you  as  a  matter  of  law,  that  he  was  insolvent  within 
the  meaning  of  the  Bankrupt  Act."  In  re  Wells,  3  N,  B.  R.  371;  29  Fe6. 
Cas.  637. 

Assets,  in  the  meaning  of  the  Bankrupt  Act  of  1867,  are  proceeds  of  the 
bankrupt's  property  which  come  into  the  hands  of  the  assignee  and  are 
applicable  to  the  payment  of  the  bankrupt's  debts.  In  re  Wilson,  2 
Hughes,  228;  30  Fed.  Cas.  97  (1875). 

The  term  "  persons  interested  "  in  the  Act  of  1841  was  held  to  mean 
those  who  have  a  direct  interest  in  the  matter  Immediately  in  controversy, 
and  not  merely  a  remote  and  contingent  interest.  Dutton  et  al.  v.  Free- 
man, 5  Law  Rep.  447;  8  Fed.  Oas.  175  (1842). 


34  The  Bankruptcy  Law. 

CHAPTEE  II. 

Ckeation  of  Couets  of  Banehuptcy  and  Theik  Jukisdiction. 

§  2.  That  the  courts  of  bankruptcy  as  hereinbefore  defined,  viz.,  the 
district  courts  of  the  United  States  in  the  several  States,  the  supreme 
court  of  the  District  of  Columbia,  the  district  courts  of  the  several 
Territories,  and  the  United  States  courts  in  the  Indian  Territory  and 
the  District  of  Alaska,  are  hereby  made  courts  of  bankruptcy,  and  are 
hereby  invested,  within  their  respective  territorial  limits  as  now  estab- 
lished, or  as  they  may  be  hereafter  changed,  with  such  jurisdiction  at 
law  and  in  equity  as  will  enable  them  to  exercise  original  jurisdiction 
in  bankruptcy  proceedings,  in  vacation  in  chambers  and  during  their 
respective  terms,  as  they  are  now  or  may  be  hereafter  held,  to 

(1.)  Adjudge  persons  bankrupt  who  have  had  their  principal  place  of 
business,  resided,  or  had  their  domicile  within  their  respective  ter- 
ritorial jurisdictions  for  the  preceding  six  months,  or  the  greater 
portion  thereof,  or  who  do  not  have  their  principal  place  of  business, 
reside,  or  have  their  domicile  within  the  United  States  but  have  prop- 
erty within  their  jurisdictions,  or  who  have  been  adjudged  bankrupts 
by  courts  of  competent  jurisdiction  without  the  United  States  and  have 
property  within  their  jurisdictions; 

(2.)  Allow  claims,  disallow  claims,  reconsider  allowed  or  disallowed 
claims,  and  allow  or  disallow  them  against  bankrupt  estates; 

(3.)  Appoint  receivers  or  the  marshals,  upon  application  of  parties  in 
interest,  in  case  the  courts  shall  find  it  absolutely  necessary,  for  the 
preservation  of  estates,  to  take  charge  of  the  property  of  bankrupts 
after  the  filing  of  the  petition  and  until  it  is  dismissed  or  the  trustee 
is  qualified;    • 

(4.)  Arraign,  try,  and  punish  bankrupts,  officers,  and  other  persons, 
and  the  agents,  officers,  members  of  the  board  of  directors  or  trustees, 
or  other  similar  controlling  bodies,  of  corporations  for  violations  of 
this  Act,  in  accordance  with  the  laws  of  procedure  of  the  United  States 
now  in  force,  or  such  as  may  be  hereafter  enacted,  regulating  trials  for 
the  alleged  violation  of  laws  of  the  United  States; 

(5.)  Authorize  the  business  of  bankrupts  to  be  conducted  for  limited 
periods  by  receivers,  the  marshals,  or  trustees,  if  necessary  in  the  best 
interests  of  the  estates; 

(6.)  Bring  in  and  substitute  additional  persons  or  parties  in  pro- 
ceedings in  bankruptcy  when  necessary  for  the  complete  determination 
of  a  matter  in  controversy; 


COUETS    OF    BaNKEUPTCY  —  JuEISDICTION.  25 

(7.)  Cause  the  estates  of  bankrupts  to  be  collected,  reduced  to  money 
and  distributed,  and  determine  controversies  in  relation  thereto,  ex- 
cept as  herein  otherwise  provided; 

(8.)  Close  estates,  whenever  it  appears  that  they  have  been  fully 
administered,  by  approving  the  final  accounts  and  discharging  the 
trustees,  and  reopen  them  whenever  it  appears  they  were  closed  before 
being  fully  administered; 

(9.)  Confirm  or  reject  compositions  between  debtors  and  their 
creditors,  and  set  aside  compositions  and  reinstate  the  cases; 

(10.)  Consider  and  confirm,  modify  or  overrule,  or  return,  with  in- 
structions for  further  proceedings,  records  and  findings  certified  to 
them  by  referees; 

(11.)  Determine  all  claims  of  bankrupts  to  their  exemptions; 

(12.)  Discharge  or  refuse  to  discharge  bankrupts  and  set  aside  dis- 
charges and  reinstate  the  cases; 

(13.)  Enforce  obedience  by  bankrupts,  officers,  and  other  persons 
to  all  lawful  orders,  by  fine  or  imprisonment  or  fine  and  imprisonment; 

(14.)  Extradite  bankrupts  from  their  respective  districts  to  other 
districts; 

(15.)  Make  such  orders,  issue  such  process,  and  enter  such  judg- 
ments in  addition  to  those  specifically  provided  for  as  may  be  necessary 
for  the  enforcement  of  the  provisions  of  this  Act; 

(16.)  Punish  persons  for  contempt  committed  before  referees; 

(17.)  Pursuant  to  the  recommendation  of  creditors,  or  when  they 
neglect  to  recommend  the  appointment  of  trustees,  appoint  trustees, 
and  upon  complaints  of  creditors,  remove  trustees  for  cause  upon  hear- 
ings and  after  notices  to  them; 

(18.)  Tax  costs,  whenever  they  are  allowed  by  law,  and  render  judg- 
ments therefor  against  the  unsuccessful  party,  or  the  successful  party 
for  cause,  or  in  part  against  each  of  the  parties,  and  against  estates,  in 
proceedings  in  bankruptcy;  and 

(19.)  Transfer  cases  to  other  courts  of  bankruptcy. 

Nothing  in  this  section  contained  shall  be  construed  to  deprive  a 
court  of  bankruptcy  of  any  power  it  would  possess  were  certain  specific 
powers  not  herein  enumerated. 

Residence  and  Place  of  Business. 

To  justify  a  petitioner  in  commencing  proceedings  in  a  district  otlier 
tlian  ttiat  in  whicli  he  resided,  under  the  Act  of  1841,  it  was  necessary 
that  he  should  have  a  fixed  and  notorious  employment  in  such  district. 
In  re  Kinsman,  1  N.  Y.  Leg.  Obs.  309;  14  Fed.  Oas.  643  (1843). 


36  The  Bankeuptcy  Law. 

A  debtor  must  reside  within  the  United  States  to  give  tlie  court  juris- 
diction of  voluntary  or  involuntary  proceedings  in  banliruptcy.  In  re 
Burton  et  al.,  0  Ben.  324;  4  Fed.  Oas.  863. 

The  banlirupt  had  carried  on  business  in  New  York  for  two  months 
prior  to  the  proceedings,  and  for  the  same  two  months  in  Massachusetts. 
It  was  held  that  the  district  court  of  New  York  had  jurisdiction  of  his 
petition.    In  re  Foster,  3  Ben.  386;  9  Fed.  Cas.  521. 

Residence  in  different  states  is  not  necessary  to  give  jurisdiction  to  a 
court  of  bankruptcy  over  a  suit  by  the  assignee,  even  though  the  defend- 
ant is  not  a  party  to  the  proceedings  in  bankruptcy.  Atkinson  v.  Purdy, 
Crabbe,  551;  2  Fed.  Cas.  112  (1844). 

A  petition  is  properly  filed  in  the  district  where  the  bankrupt  had  been 
carrying  on  business  for  six  months  previous,  notwithstanding  it  was  not 
his  place  of  residence.     In  re  Bailey,  2  Ben.  437;  2  Fed.  Cas.  392. 

A  petitioner  in  New  York  failed  to  allege  residence  in  his  petition,  and 
it  appeared  on  the  examination  that  he  lived  with  his  father  in  New 
Jersey,  and  kept  books  for  a  firm  in  New  York  City.  The  register  refused 
an  adjudication  for  the  want  of  jurisdiction,  and  his  action  was  approved 
by  the  court.    In  re  Magie,  2  Ben.  369;  16  Fed.  Cas.  406. 

The  petition  showed  on  its  face  that  the  bankrupt  resided  out  of  the 
district.  Nearly  a  year  afterward,  the  ijetitioner  sought  to  have  the  peti- 
tion amended  so  as  to  show  that  the  alleged  bankrupt  in  fact  resided 
within  the  district.  The  application  was  denied.  In  re  Freudenfels,  9 
Fed.   Cas.  810. 

The  bankrupts  appeared  in  involuntary  proceedings,  and  a  decree  of 
adjudication  was  entered  with  their  consent.  Subsequently,  a  creditor 
who  had  not  joined  in  the  petition  moved  to  dismiss  the  proceedings,  and 
in  that  behalf  showed  that  the  bankrupts  had  never  resided  or  carried 
on  business  in  the  state  where  the  proceedings  were  commenced.  It  was 
held  that  the  court  was  without  jurisdiction,  and  that  the  proceedings 
must  be  vacated.    Fogarty  v.  Garrity,  1  Saw.  233;  9  Fed.  Cas.  330. 

A  debtor  against  whom  involuntary  proceedings  were  commenced  on 
the  21st  of  January,  1868,  had  not  carried  on  business  anywhere  during 
the  six  months  previous.  From  May  1,  1867,  to  December  7  of  the  same 
year,  he  resided  in  Boston,  and  from  that  time  until  the  commencement 
of  proceedings,  at  New  York.  The  proceedings  were  commenced  in  New 
York,  and  an  adjudication  had  by  default;  but  the  question  of  residence 
having  been  raised  upon  the  discharge,  it  was  held  tliat  the  court  had 
no  jurisdiction.    In  re  Lelghton,  4  Ben.  457;  15  Fed.  Cas.  265. 

The  bankrupt  had  resided  in  New  Jersey  for  more  than  six  months 
before  the  filing  of  his  petition,  but  had  a  desk  in  New  York  where  he 
kept  his  books  and  papers,  and  was  engaged  in  closing  up  the  affairs  of 
a  former  partnership  of  which  he  had  been  a  member.  He  was  not  en- 
gaged in  any  other  business.  The  district  court  for  the  southern  district 
of  New  York  held  that  it  had  no  jurisdiction  over  his  petition.  In  re 
Little,  3  Ben.  25;  15  Fed.  Cas.  599. 

A  railroad  company  was  chartered  both  in  Massachusetts  and  Connecti- 
cut.   Proceedings  in  bankruptcy  were  commenced  in  the  former  state  and 


CouKTS  OF  Bankruptcy  —  Jurisdiction.  27 

an  adjudication  entered.  After  the  filing  of  tlie  petition,  but  before  the 
adjudication,  another  creditor  commenced  proceedings  in  Connecticut. 
The  petitioner  in  the  proceedings  in  Massachusetts  made  an  application 
to  the  district  court  in  Connecticut  asking  leave  to  appear  and  defend 
against  the  petition  in  that  state.  The  district  court  denied  the  applica- 
tion, but  the  circuit  court  decided  that  it  should  have  been  entertained, 
and  that  whether  the  company  was  to  be  regarded  as  one  corporation  or 
two  corporations,  the  court  in  Massachusetts  should  have  been  allowed 
to  exercise  the  jurisdiction  which  it  had  acquired.  In  re  Boston  H.  &  B. 
K.  Co.,  9  Blatchf.  101,  409;  3  Fed.  Cas.  951. 

A  merchant,  who  had  resided  and  done  business  In  New  York  for  twenty 
years,  failed,  and  thereupon  sold  his  residence  in  New  York  and  removed 
with  his  family  to  New  Jersey.  Two  years  later,  during  which  time  he 
had  been  engaged  as  a  clerk  in  New  York,  he  filed  his  petition  in  bank- 
ruptcy in  the  southern  district  of  New  York.  It  was  held  under  the  Act 
of  1867  that  the  petition  was  properly  filed  in  that  district.  In  re  Belcher, 
2  Ben.  468;  3  Fed.  Cas.  79. 

A  creditor  residing  in  one  state  proved  his  debt  in  proceedings  in  bank- 
ruptcy in  another  state.  Thereafter  he  was  ordered  to  appear  before  the 
register  to  be  examined  respecting  his  claim,  which  he  failed  to  do.  Held, 
that  he  was  subject  to  the  jurisdiction  of  the  court  by  reason  of  his  hav- 
ing proved  his  claim  without  respect  to  his  residence;  but  that  if  he  could 
not  attend  personally  without  hardship,  the  court  would  order  his  ex- 
amination before  a  register  at  his  place  of  residence.  In  re  Kyler,  2  Ben. 
414;  14  Fed.  Cas.  887. 

A  debtor  who  was  born  in  Boston,  and  had  lived  there  the  greater  part 
of  his  life,  was  domiciled  for  some  time  in  California;  then  went  abroad 
for  eleven  months,  and  thereafter  returned  to  Boston.  Within  two 
months  after  his  return,  he  filed  a  petition  in  bankruptcy  in  the  district 
of  Massachusetts.  The  court  held  that  his  residence  in  that  state  was 
resumed  in  a  legal  sense  when  he  left  California  without  intending  to 
return,  and  for  the  purpose  of  resuming  his  residence  at  Boston.  In  re 
Walker,  1  Low.  237;  29  Fed.  Cas.  1. 

W.  removed  to  Montana  with  a  stock  of  goods,  leaving  his  family  at  St. 
Louis.  He  remained  in  Montana  for  ten  months  with  the  exception  of  a 
business  trip  to  his  former  home,  and  then  returned  to  St.  Louis.  Two 
months  later,  a  petition  in  bankruptcy  was  filed  against  him  in  the  eastern 
district  of  Missouri.  The  court  held  that  Montana  was  his  place  of  resi- 
dence during  the  six  months  preceding  the  filing  of  the  petition.  In  re 
Watson,  4  N.  B.  R.  613;  29  Fed.  Cas.  422. 

An  assignee  In  bankruptcy  can  only  recover  property  by  a  proceeding 
in  another  district  by  a  plenary  suit,  and  the  defendant  must  be  an  in- 
habitant of,  or  to  be  found  in  the  latter  district,  at  the  time  of  serving 
the  writ,  to  give  the  district  court  jurisdiction.  Shainwald  v.  Lewis,  5 
Fed.  Rep.  510. 

A  debtor  residing  In  Massachusetts  was  arrested  for  debt  In  New 
Brunswick.     He  gave  bail,  and  later  surrendered  himself  and  was  im- 


28  The  Bankeuptcy  Law. 

prisoned.  Later,  he  filed  his  petition  in  banlcruptcy  in  Massachusetts, 
and  thereafter  was  charged  in  execution  under  the  proceedings  in  New- 
Brunswick.  Judge  Lowell  held  that  this  was  not  an  arrest  "  during  the 
pendency  of  the  proceedings  in  bankruptcy  "  under  the  Act  of  1867,  as  the 
charge  in  execution  related  back  to  the  surrender;  also  that  as  both  the 
debtor  and  the  creditor  were  residents  of  Massachusetts,  the  court  of 
bankruptcy  might  enjoin  the  creditor  from  proceeding  in  the  arrest. 
Hazleton  v.  Valentine,  1  Low.  270;  11  Fed.  Gas.  942. 

A  conflict  between  rival  claims  to  funds  in  the  hands  of  the  assignee 
in  bankruptcy  was  held  to  be  determinable  in  a  suit  in  the  district  court, 
although  both  claimants  were  residents  of  the  same  state,  the  suit  being 
considered  as  auxiliary  to  the  original  proceedings  in  bankruptcy,  and, 
therefore,  within  the  jurisdiction  of  the  court.  In  re  Sabin,  18  N.  B.  R. 
154;  21  Fed.  Oas.  120  (1878). 

Residence,  etc.,  of  Partnerships. 

Under  the  Act  of  1841  petitions  could  be  filed  in  the  district  where  the 
bankrupt  resided,  or  in  that  in  which  he  had  his  place  of  business.  Any 
member  of  a  firm  could  commence  proceedings  in  the  district  of  his  resi- 
dence, or  where  the  firm  carried  on  its  business;  but  the  court  that  first 
acquired  jurisdiction  had  exclusive  jurisdiction  over  all  the  partners  and 
their  property,  joint  and  separate.  Ex  parte  Hall,  5  Law  Rep.  269;  11 
Fed.  Gas.  196  (1842). 

An  adjudication  in  bankruptcy  was  entered  against  a  firm  on  the  peti- 
tion of  one  partner.  The  other  partners  resided  outside  of  the  district, 
and  had  no  place  of  business  within  it.  The  court  vacated  the  adjudica- 
tion for  want  of  jurisdiction,  except  as  to  the  petitioning  partner.  In  re 
Martin,  6  Ben.  20;  16  Fed.  Gas.  875. 

In  proceedings  of  Involuntary  bankruptcy  against  a  firm,  the  petition 
set  up  that  the  three  partners  had  resided  in  the  district  for  the  previous 
six  months.  On  the  application  for  a  discharge,  it  was  shown  in  oppo- 
sition that  one  of  them  had  not  resided  in  the  district  for  that  period. 
Held,  that  the  court  could  not  grant  a  discharge  to  any  of  them.  In  re 
Beal,  9  Ben.  223;  2  Fed.  Gas.  1119. 

The  petitioners  were  copartners,  and  at  the  time  the  debts  were  con- 
tracted were  doing  business  in  the  state  of  New  York,  but  one  of  them 
resided  in  the  eastern  district  of  New  York,  and  was  not  engaged  in  busi- 
ness when  the  petition  was  filed.  The  petition  was  filed  in  the  southern 
district  of  New  York.  Held,  that  the  partner  residing  in  the  eastern 
district  of  New  York  must  file  his  petition  in  that  district.  In  re  Pritchard 
et  al.,  1  N.  B.  R.  297;  19  Fed.  Gas.  1242. 

A  petition  in  involuntaiy  bankruptcy  against  a  firm  was  filed  in  the 
southern  district  of  Ohio.  It  appeared  that  while  one  of  the  partners  lived 
In  that  district,  the  only  place  of  business  of  the  firm  was  in  Michigan. 
Held,  that  the  petition  could  only  be  filed  in  the  latter  district.  Cameron 
V.  Oanieo,  9  N.  B.  R.  527;  4  Fed.  Oas.  1128. 


Courts  of  Bankkuptcy  —  Jurisdiction.  29 

Where  one  of  two  partners  resided  iti  the  United  States  and  the  other 
In  Canada,  it  was  held  that  the  court  could  adjudge  the  former  a  bank- 
rupt, but  not  the  latter.    In  re  Burton  et  al.,  9  Ben.  324;  4  Fed.  Gas.  863. 

The  court  entertained  jurisdiction  of  a  petition  in  bankruptcy  by  one 
member  of  the  firm  who  resided  in  the  district,  when  the  other  members, 
who  resided  in  another  district,  refused  to  unite  after  being  requested, 
and  when  it  appeared  that  the  copartnership  assets  had  come  into  the 
hands  of  the  assignee.    In  re  Penn  et  al.,  5  Ben.  89;  19  Fed.  Gas.  151. 

Where  two  partners  resided  in  different  states,  and  each  had  filed  a 
petition  in  bankruptcy  In  his  own  state.  Judge  Lowell  ordered  the  pro- 
ceedings to  be  stayed  in  the  case  in  which  the  second  petition  was  filed. 
In  re  Smith,  1  N.  B.  R.  214;  22  Fed.  Gas.  397. 

The  court  that  first  acquires  jurisdiction  of  an  estate  in  bankruptcy  has 
exclusire  jurisdiction,  and  other  members  of  the  same  copartnership 
cannot  institute  proceedings  in  another  court.  In  re  Greenfield,  5  Ben. 
552;  10  Fed.  Gas.  1162. 

Three  partners  resided  In  the  southern  district  of  New  York  and  con- 
ducted business  there.  Two  of  them,  as  another  firm,  also  carried  on 
business  In  the  northern  district  of  New  York.  The  former  firm  was 
adjudged  bankrupts,  and  the  assignee  took  possession  of  all  their  estate. 
Two  weeks  later  a  petition  was  filed  against  the  other  firm  In  the  northern 
district.  Held,  that  the  latter  firm  was  dissolved  by  the  adjudication  of 
the  former;  that  its  firm  indebtedness  would  be  discharged  by  the  pro- 
ceedings In  the  first  case;  that  its  creditors  would  be  entitled  to  a  pref- 
erence over  other  creditors  so  far  as  the  firm  assets  would  pay  the  same, 
which  would  be  recognized  by  the  proceedings  in  the  southern  district; 
that  creditors  of  the  latter  firm  could  not  vote  for  assignee  In  the  previous 
case,  but  might  oppose  the  confirmation,  or  apply  for  his  removal,  and 
that  the  proceedings  in  the  latter  case  should  be  stayed,  while  -the  pro- 
ceedings in  the  southern  district  were  pending.  In  re  Leland  et  al.,  5 
Ben.  168;  15  Fed.  Gas.  2T5. 

[See  notes  to|5.] 

Jurisdiction,  over  Corporations. 

The  court  of  bankruptcy  may  make  an  order  upon  subscribers  to  the 
stock  of  a  bankrupt  corporation  without  notice  of  the  proceeding.  Sanger 
V.  Upton,  91  U.  S.  56;  TurnbuU  v.  Payson,  95  id.  418. 

The  court  of  bankruptcy  made  an  assessment  upon  the  unpaid  sub- 
scriptions to  the  stock  of  the  bankrupt  corporation.  It  was  held  that  Its 
action  was  conclusive,  and  not  subject  to  collateral  attack.  Michener  v. 
Payson,  13  N.  B.  R.  49;  17  Fed.  Gas.  250. 

The  court  of  bankruptcy  is  vested  with  all  the  powers  of  the  officers 
and  stockholders  of  a  bankrupt  corporation  in  making  assessments  or 
calls  for  unpaid  subscriptions  to  stock.  Upton  v.  Hansbrough,  3  Blss. 
417;  28  Fed.  Gas.  839. 

The  court  of  bankruptcy  can  make  an  assessment  upon  the  stockholders 
of  a  bankrupt  corporation  for  unpaid  stock,  and  such  assessments  should 
be  enforced  in  actions  by  the  assignee.    The  action  of  the  court  is  not 


30  The  Banketjptct  Law. 

subject  to  collateral  attack  in  the  suits  to  enforce  the  collection  of  such 
assessments.     Payson  v.  Stoever,  2  Dill.  427;  19  Fed.  Gas.  27. 

The  court  of  bankruptcy  has  the  powers  of  a  court  of  equity  to  make 
an  assessment  against  the  stockholders  of  an  insolvent  insurance  com- 
pany, to  return  unearned  premiums,  and  to  equalize  payments  between 
stockholders  where  some  have  paid  more  than  their  just  proportion;  and 
may  In  proper  cases  allow  interest  on  claims.  In  re  Rep.  Ins.  Co.,  3  Biss. 
452;  20  Fed.  Cas.  544. 

A  court  of  bankruptcy  does  not  lose  its  jurisdiction  over  a  corporation 
by  reason  of  the  fact  that  the  state  has  an  interest  in  its  property  as  a 
guarantor  of  its  bonds.  In  re  Greenville  &  a  R.  Co.,  5  Chi.  Leg.  News. 
124;  10  Fed.  Cas.  1180. 

An  action  was  brought  by  an  assignee  in  bankruptcy  to  collect  unpaid 
subscriptions  from  the  stockholders  of  a  bankrupt  corporation.  Held, 
that  the  question  whether  the  call  was  for  more  than  was  necessary  to 
pay  the  debts  of  the  company  could  not  be  tried  in  such  an  action;  neither 
was  it  competent  to  show  that  the  agents  and  officers  of  the  company 
had  represented  to  their  holders  at  the  time  of  the  purchase  that  the  stock 
was  nonassessable.    Upton  v.  Hansbrough,  3  Biss.  417;  28  Fed.  Cas.  839. 

The  power  of  the  United  States  district  court  in  bankruptcy  to  vrind 
up  insolvent  corporations  was  held  not  to  be  exclusive  under  the  Act  of 
1867.    Chandler  v.  Siddle,  3  Dill.  477;  5  Fed.  Cas.  450. 

The  adjudication  of  a  corporation  in  bankruptcy  terminates  the  juris- 
diction of  state  courts  under  laws  authorizing  them  to  wind  up  its  affairs. 
The  court  further  held  that  there  is  no  question  of  comity  In  such  case, 
but  only  one  of  jurisdiction.  Watson  v.  Citizens'  Savings  Bank,  2  Hughes, 
200;  29  Fed.  Cas.  427. 

Proceedings  had  been  commenced  under  the  laws  of  Louisiana  to  wind 
up  the  affairs  of  an  insolvent  bank.  Later,  creditors  of  the  bank  filed  a 
petition  in  bankruptcy.  It  was  held  that  the  state  law  was  superseded  by 
the  Bankrupt  Act,  and  that  the  jurisdiction  of  the  state  court  terminated 
with  its  decree  declaring  the  forfeiture  of  its  charter.  Thornhill  et  al.  v. 
Bank  of  Louisiana,  3  Ni  B.  R.  435;  23  Fed.  Cas.  1135;  s.  c,  1  Wood,  1; 
23  Fed.  Cas.  1139. 

A  court  of  bankruptcy  will  not  compel  a  receiver  of  a  joint-stock  bank, 
appointed  by  a  state  court  under  the  laws  of  the  state,  to  deliver  the 
assets  of  the  bank  to  an  assignee  in  bankruptcy.  Goodrich  et  al.  v. 
Remington,  6  Blatchf.  515;  10  Fed.  Cas.  611. 

Where  parties  were  Induced  to  purchase  the  stock  of  a  corporation 
through  fraud  and  misrepresentation,  they  cannot  repudiate  the  contract 
In  defense  of  an  action  for  unpaid  subscriptions  after  paying  assessments 
and  participating  in  meetings  of  stockholders  until  the  company  became 
Insolvent.    Upton  v.  Jackson,  1  Fllpp.  413;  28  Fed.  Oas.  844. 

A  state  court  issued  an  order  dissolving  a  corporation,  without  juris- 
diction. Subsequently,  the  corporation  filed  a  voluntary  petition  in  bank- 
ruptcy, and  an  adjudication  was  had.  It  was  held  that  this  would  not  be 
set  aside  on  the  ground  of  a  prior  order  of  the  state  court;  and  It  was 


CouETS  OF  Bankruptcy  —  Jueisdiction.  31 

further  decided  that  there  is  no  presumption  of  jurisdiction  in  a  state 
court  respecting  proceedings  for  the  voluntary  dissolution  of  corporations 
under  the  laws  of  the  state.  In  re  Pensacola  Lumber  Oo.,  8  Ben.  171;  19 
Fed.  Cas.  197. 

When  proceedings  in  banliruptcy  against  a  railroad  company  were  com- 
menced the  railroad  was  in  the  hands  of  receivers  appointed  by  state 
courts.  The  district  court  refused  to  interfere  with  their  possession. 
Alden  v.  H.  &  E.  R.  Co.,  5  N.  B.  R.  230;  1  Fed.  Cas.  328. 

A  court  of  banliruptcy  has  jurisdiction  to  enjoin  proceedings  to  wind 
up  a  savings  bank  under  the  laws  of  the  state,  notwithstanding  they  were 
commenced  prior  to  the  filing  of  the  petition.  In  re  Citizens'  S.  Bank,  9 
N.  B.  R.  152;  5  Fed.  Cas.  788. 

A  receiver  for  an  insolvent  corporation  had  been  appointed  under  the 
laws  of  the  state.  Subsequently,  a  petition  in  bankruptcy  was  filed,  and 
an  order  to  show  cause  was  served  on  the  managing  officer  of  the  cor- 
poration. On  the  following  day,  the  state  court  entered  a  judgment  dis- 
solving the  coi-poration.  About  a  week  later  an  adjudication  was  had  in 
the  bankruptcy  proceedings.  It  was  held  that  the  court  had  jurisdiction 
to  make  the  adjudication.  Piatt  v.  Archer,  9  Blatchf.  559;  19  Fed.  Cas. 
822. 

[See  notes  to  §§  4  and  47.] 

Appointment  of  Receivers. 

A  court  will  appoint  a  receiver  of  mortgaged  premises  of  the  bankrupt 
alleged  to  have  been  fraudulently  conveyed,  notwithstanding  the  banlt- 
rupt  has  relinquished  possession.  McLean  v.  LaFayette  Bank  et  al.,  3 
McLean,  508;  16  Fed.  Gas.  262  (1845). 

Where  attorneys  for  the  opposite  parties  are  present  in  court,  a  receiver 
may  be  appointed  without  notice.    Id. 

An  injunction  may  be  granted  forbidding  parties  to  collect  rents  from 
real  estate  in  which  the  bankrupts  have  a  legal  or  equitable  interest,  and 
a  receiver  appointed  to  collect  and  account  for  such  rents.  Keenan  v. 
Shannan  et  al.,  9  N,  B.  R.  441;  14  Fed.  Cas.  177. 

A  court  will  not  appoint  a  receiver  of  mortgaged  property  of  the  bank- 
rupt after  the  appointment  of  an  assignee.  In  re  Bennett,  2  Hughes,  156; 
3  Fed.  Cas.  206. 

After  adjudication,  and  before  the  election  of  an  assignee,  a  receiver 
may  be  appointed  for  the  temporary  custody  of  the  estate;  but  such  a 
receiver  cannot  maintain  an  action  to  recover  property  transferred  by  the 
bankrupt  in  fraud  of  the  law,  nor  can  the  assignee  be  substituted  and 
permitted  to  prosecute  a  suit  so  begun.  Lansing  v.  Manton,  14  N.  B.  R. 
127;  14  Fed.  Cas.  1129. 

A  receiver  was  appointed  in  bankruptcy  proceedings  to  take  possession 
of  certain  property.  Instead,  he  took  possession  of  other  property  which 
never  belonged  to  the  bankrupt.  The  owner  brought  a  suit  against  the 
receiver  for  trespass,  and  another  in  replevin  against  his  custodian.  In 
the  latter  suit,  the  defendant  appeared  and  judgment  was  rendered 
against  him.  In  proceedings  to  punish  the  owner  of  the  property  for 
contempt,  the  court  held  that  after  the  custodian  had  appeared  in  the 


33  The  Bankeuptcy  Law. 

state  court  It  was  too  late  to  complain  tliat  the  suit  was  in  contempt  of 
the  authority  of  the  court  of  bankruptcy;  also,  that  the  receiver  was  not 
sued  in  his  official  capacity,  but  as  an  individual,  and  that  he  was  not 
entitled  to  the  protection  of  the  court  of  bankruptcy.  In  re  Young,  7 
Fed.  Rep.  855. 

On  a  bill  to  set  aside  a  voluntary  assignment  made  by  the  bankrupt,  the 
assignee  having  been  enjoined  from  interfering  with  the  property  in  ques- 
tion, the  appointment  of  a  receiver  by  the  bankruptcy  court  is  not  only 
proper,  but  necessary.  Sedgwick  v.  Place,  3  Ben.  360;  3  N.  B.  K.  139;  21 
Fed.  Gas.  986  (1869). 

Where  a  voluntary  assignment  had  been  made,  and  afterward  the  as- 
signors became  bankrupts,  a  special  receiver  having  been  appointed,  it 
was  held  that  the  assets  collected  should  be  distributed  directly  by  the 
receiver,  and  not  through  the  assignee  in  bankruptcy.  Sedgwick  v.  Place, 
3  N.  B.  R.  302;  21  Fed.  Gas.  999  (1869). 

Injunctions  and  Chancery  Jurisdiction. 

The  Act  of  1841  gave  the  district  court  of  the  United  States  the  juris- 
diction of  courts  of  equity  as  to  matters  arising  in  bankruptcy.  Ex  parte 
Foster,  2  Story,  131;  9  Fed.  Gas.  508  (1842). 

The  bankrupt  law  clothes  the  district  courts,  sitting  as  courts  of  bank- 
ruptcy, with  all  the  powers  of  courts  of  equity.  '  Ex  parte  Norwood,  3 
Biss.  504;  18  Fed.  Gas.  452  (1873). 

A  court  of  bankruptcy  can  exercise  the  same  power  over  judgment 
creditors  that  a  state  court  of  equity  could  exercise  over  such  creditors  if 
the  debtor  were  not  a  bankrupt.  Fowler  v.  Dillon  et  al.,  1  Hughes,  232; 
9  Fed.  Gas.  616. 

The  provision  of  the  Judiciary  Act  of  1793  which  forbids  federal  courts 
to  grant  injunctions  without  notice  to  the  adverse  party  was  held  not  to 
apply  to  proceedings  in  the  district  court  under  the  Bankrupt  Act  of  1867. 
Ex  parte  Donaldson,  1  N.  B.  R.  181;  7  Fed.  Gas.  881. 

Under  the  Act  of  1841,  Judge  Story  held  that  in  the  exercise  of  its 
general  chancery  jurisdiction,  the  district  court  could  grant  an  injunction 
without  notice  in  bankruptcy  proceedings.  Ex  parte  Garlton,  5  Law  Rep. 
120;  5  Fed.  Gas.  86  (1842). 

An  injunction  restraining  certain  creditors  from  interfering  with  the 
property  of  the  bankrupts  was  made  on  petition.  On  proceedings  for 
contempt,  the  court  held  that  it  had  jurisdiction  to  issue  the  injunction 
in  the  manner  employed.    In  re  Ulrich  et  al.,  6  Ben.  483;  24  Fed.  Oas.  511. 

A  court  of  bankruptcy  will  not  interfere  by  injunction  to  prevent  parties 
from  ascertaining  claims  to  property  of  the  bankrupt  which  has  been 
sold  in  the  course  of  proceedings.    Adams  v.  Crittenden,  17  Fed.  Rep.  42. 

The  bankruptcy  court  on  the  application  of  the  assignee  will  enjoin  the 
prosecution  of  a  suit  against  him  commenced  without  leave  of  that  court. 
Lloyd  V.  Ball,  77  Fed.  Rep.  365 

A  motion  will  not  be  entertained  to  punish  a  party  for  contempt  in 
violating  an  injunction  granted  under  section  40  of  the  Act  of  1867,  after 
adjudication.    In  re  Moses,  6  N.  B.  R.  181;  17  Fed.  Gas.  889. 


Courts  of  Bankruptcy  —  Jurisdiction.  33 

In  granting  an  injunction  against  third  parties  on  a  petition  in  in- 
voluntary banlsruptcy,  tlie  court  said  that  it  could  only  remain  in  force 
until  adjudication,  and  that  a  separate  bill  for  an  injunction  must  then  be 
filed.    In  re  Kintzing,  3  N.  B.  R.  217;  14  Fed.  Oas.  644. 

Injunction  will  be  granted  to  restrain  the  disposition  of  property  by  an 
individual  assignee  of  a  banlsrupt  only  in  case  of  actual,  imminent  danger 
to  banlirupt's  property,  and  not  as  a  mere  preventive  against  possible 
waste  or  misappropriation.  Ex  parte  Nightingale,  1  N.  Y.  Leg.  Obs.  8; 
18  Fed.  Cas.  238. 

The  petitioning  creditor  set  forth  a  conspiracy  to  embezzle  the  estate 
of  the  banlirupt.  The  court  granted  an  injunction  before  adjudication, 
but  required  security  to  be  given  to  cover  all  possible  losses  in  case  the 
creditor  failed  to  establish  good  cause  for  the  proceeding.  In  re  Smith,  1 
N.  Y.  Leg.  Obs.  249;  22  Fed.  Cas.  411  (1843). 

Judge  Deady  decided  that  under  section  1  of  the  Act  of  1867  the  district 
courts  had  equity  jurisdiction  over  all  things  to  be  done  by  virtue  of 
banliruptcy,  and  that  it  was  not  necessary  to  resort  to  plenary  suits,  as 
they  might  proceed  on  petition;  further,  that  the  Act  of  March  2,  1793, 
requiring  notice,  did  not  apply  to  applications  for  injunctions  in  banli- 
ruptcy proceedings.    In  re  Wallace,  Deady,  433;  29  Fed.  Cas.  65. 

The  banliruptcy  court  has  jurisdiction  of  a  suit  in  equity  to  establish 
a  trust  in  funds  of  the  bankrupt's  estate  fraudulently  appropriated;  and 
objections  to  the  bill  will  not  be  sustained  because  the  fraudulent  assignee 
of  the  funds  is  not  made  a  party.    Shainwald  v.  Davids,  69  Fed.  Rep.  687. 

The  district  court,  as  a  court  of  banlcruptcy,  is  clothed  with  all  the 
powers  of  a  court  of  equity,  and  if,  after  adjudication,  the  banlirupt 
refuses  to  account  for  his  assets  or  surrender  his  property  when  ordered 
so  to  do  by  the  court,  he  may  be  committed  for  contempt.  The  power  to 
punish  for  contempts,  however,  should  be  sparingly  exercised,  and  only 
in  cases  where  there  can  be  no  doubt  of  its  propriety.  In  re  Salliey,  11 
N.  B.  R.  423;  21  Fed.  Cas.  235  (1875);  11  N.  B.  R.  516;  21  Fed.  Cas.  239 
(1875). 

Upon  a  petition  in  involuntary  banliruptcy  an  injunction  was  issued 
agaiust  M.,  to  whom  it  was  claimed  that  property  of  the  debtors  had  been 
fraudulently  conveyed,  restraining  him  from  maliing  any  transfer  or  dis- 
position of  the  goods  so  conveyed.  Subsequently  he  was  charged  with 
contempt  in  violating  this  order.  The  court  refused  to  take  any  action 
upon  the  contempt  proceedings  until  the  proper  issues  were  made  up  by  a 
suit  at  law  or  bill  in  equity  against  M.  Creditors  v.  Cozzens  et  al.,  3 
N.  B.  R.  281;  6  Fed.  Cas.  793. 

Until  an  assignee  is  appointed,  a  petition  for  an  injunction  against  the 
sale  of  real  estate  can  only  be  filed  by  the  bankrupt.  In  re  Bowie,  1 
N.  B.  R.  628;  3  Fed.  Cas.  1067. 

Under  section  4  of  the  Act  of  1867,  it  was  held  that  upon  the  filing  of  a 
petition  in  involuntary  bankruptcy,  the  district  court,  upon  the  applica- 
tion of  the  petitioner,  could  enjoin  the  debtor  and  his  grantee  from  con- 
veying or  disposing  of  any  property  once  owned  by  the  debtor  and  claimed 
3 


34  The  Bankeuptoy  Law. 

to  have  been  fraudulently  transferred  by  him  and  concealed,  and  that 
such  an  injunction  should  not  be  dissolved  except  upon  proof  that  such 
action  was  not  in  fraud  of  creditors.  In  re  Abbott,  1  Hask,  250;  1  Fed. 
Cas.  15. 

Where  creditors  of  the  bankrupt,  prior  to  proceedings  In  bankruptcy, 
'filed  a  bill  In  equity  for  an  injunction  forbidding  him  to  dispose  of  certain 
goods,  it  was  held  that  the  bill  was  nothing  more  than  a  petition,  applica- 
jtion,  or  other  proceeding  under  the  Act.  In  re  Fendley,  10  N.  B.  R.  250; 
8  Fed.  Cas.  1137. 

Under  section  5063,  R.  S.,  it  was  held  that  the  court  of  bankruptcy  had 
power  to  determine  the  question  of  title  to  property  claimed  by  him  and 
others  on  a  petition  filed  by  him,  where  all  the  parties  interested  appeared 
and  asked  for  a  determination.    Adams  v.  Collier,  122  V.  S.  82. 

In  Involuntary  proceedings,  the  court  granted  an  injunction  forbidding 
:the  debtor  to  collect  accounts  or  dispose  of  their  property,  but  refused 
to  extend  It  to  parties  who  had  not  been  served  with  notice  of  the  applica- 
tion.   In  re  Calendar,  5  liaw  Rep.  129;  4  Fed.  Cas.  10i5. 

A  petition  in  involuntary  bankruptcy  was  filed  February  5th,  and  on  the 

same  day,  an  Injunction  was  Issued  forbidding  the  bankrupts  and  one  D. 

from  interfering  with  the  property  of  the  debtors,  etc.,  "  until  the  further 

order  of  the  court."     The  injunction  was  served  on  D.   February  14th. 

On  the  19th,  the  debtors  were  adjudged  bankrupts.     D.  had  commenced 

a  foreclosure  suit  against  one  of  the  bankrupts  before  the  filing  of  the 

petition,  and  in  that  suit  a  decree  was  entered  on  the  12th  of  February, 

and  on  the  8th  of  March,  he  caused  the  property  to  be  sold.     The  court 

decided  that  D.  had  not  been  guilty  of  contempt,  and  that  the  injunction 

having  been  issued  under  section  5024,  R.  S.,  did  not  operate  after  the 

adjudication,  notwithstanding  Its  language.     In  re  Irving  et  al.,  8  Ben. 

463;  8  Fed.  Cas.  108. 

[For  an  important  opinion,  afflrming  the  authority  of  the  district  court  under  the  Act 
of  1898  to  grant  an  injunction  against  the  sale  of  property  under  process  of  a  State  court 
until  a  petition  in  banliruptoy  can  be  filed  against  the  debtor,  see  notes  to  section  71.] 

TtLrisdiction,  Without  the  District. 

In  the  case  cited.  Judge  Dillon  considered,  without  deciding,  the  ques- 
tion whether  process  in  bankruptcy  can  be  served  on  parties  interested 
outside  of  the  district  In  which  the  proceedings  are  pending.  Markson  v. 
Heaney,  1  Dill.  497;  16  Fed.  Cas.  769'. 

A  subpoena  in  a  suit  in  equity  brought  by  an  assignee  is  an  original 
process  within  the  eleventh  section  of  the  Judiciary  Act,  and  there  is  no 
express  authority  In  the  Bankrupt  Act  of  1867,  for  the  service  of  such  a 
subpoena  outside  of  the  district  where  the  suit  is  brought  Jobbins  v. 
Montague  et  al.,  5  Ben.  422;  13  Fed.  Cas.  644. 

A  register  in  Vermont  ordered  a  bankrupt  to  produce  certain  books  and 
papers,  which  order  was  disobeyed,  and  the  facts  were  certified  to  the 
district  court  where  an  order  was  made  adjudging  the  bankrupt  guilty 
of  contempt  and  directing  him  to  deliver  the  books  and  papers  or  be  com- 
mitted to  jail  In  default.  The  bankrupt  was  arrested  in  New  Hampshire 
and  committed  to  jail  in  Vermont.  It  was  held  that  the  order  of  the 
district  court  was  proper  and  valid;  but  that  the  arrest  in  New  Hamp- 


Courts  of  Bankruptcy  —  Jurisdiction.  35 

shire  was  illegal  and  the  imprisonment  in  Vermont  in  pursuance  of  such 
arrest  was  also  illegal.    In  re  Allen,  13  BlatcUf.  271;  1  Fed.  Cas.  436. 

In  proceedings  pending  in  New  York  an  order  was  made  upon  a  party  to 
show  cause  why  certain  transfers  should  not  be  set  aside.  The  order 
was  served  in  Illinois.  The  party  thus  served  appeared  by  attorney. 
Later,  the  attorney  aslced  that  his  appearance  be  withdrawn  on  the 
ground  that  it  liad  been  made  by  mistalie.  The  court  denied  the  applira- 
tion,  and  held  that  it  had  jurisdiction  over  the  party  in  Illinois  to  malie 
the  order  prayed  tor.    In  re  Ulrich  et  al.,  3  Ben.  355;  24  Fed.  Cas.  .^10. 

An  order  was  made  requiring  the  bankrupt  to  appear  before  the  register 
at  his  office  in  St.  Paul.  The  order  was  served  on  the  bankrupt  in 
Chicago.  A  motion  was  made  for  a  warrant  of  arrest  to  bring  him  before 
the  court  and  answer  for  a  contempt  in  disobeying  the  order.  The  court 
'held  that,  except  In  case  of  personal  service  of  the  order  within  its  juris- 
diction, it  had  no  power  to  institute  proceedings  for  contempt.  The  court 
intimated,  however,  that  as  it  was  a  case  of  voluntary  bankruptcy,  lie 
would  refuse  to  grant  a  discharge  to  the  bankrupt;  also  that  if  it  was  de- 
sired he  would  designate  a  register  in  Chicago  before  whom  the  examina- 
tion could  be  had.    In  re  Hodges,  11  N.  B.  R.  3C9;  12  Fed.  Cas.  281. 

While  pi'oceedings  in  bankruptcy  were  proceeding  in  Louisiana,  a  suit 
was  commenced  against  the  bankrupts  in  New  Yorli,  and  the  bankrupts 
applied  in  the  district  court  of  the  latter  state  for  an  injunction  staying 
proceedings  in  that  state.  It  was  held  that  no  court  of  bankruptcy  but 
that  in  which  the  proceedings  were  pending  could  grant  such  an  order. 
In  re  Richardson  et  al.,  2  Ben.  517;  20  Fed.  Cas.  606. 

Where  proceedings  in  bankruptcy  were  commenced  in  one  state  and 
subsequently  in  another,  the  court  that  first  acquired  jurisdiction  by  the 
filing  of  the  petition  was  held  to  have  the  right  to  proceed  to  a  final  deter- 
mination.   In  re  Brown,  19  N.  B.  R.  270;  4  Fed.  Cas.  336. 

"  Every  district  court  of  the  United  States  has  jurisdiction  and  au- 
thority to  make  all  lawful  orders  and  decrees  in  bankruptcy,  although 
the  original  petition  in  bankruptcy  was  filed  in  another  district,  provided 
that  the  relief  asked  is  such  as  cannot  be  given  by  the  district  court 
where  the  petition  was  originally  filed,  because  the  persons  or  property 
sought  to  be  affected  by  the  order  or  decree  are  beyond  the  reach  of  its 
process,  and  where  they  are  within  the  reach  of  the  process  of  the  dis- 
trict court  whose  aid  is  thus  invoked."  McGehee  et  al.  v.  Hentz  et  al.,  16 
Fed.  Cas.  103. 

Judge  Nelson,  of  the  district  court  of  Minnesota,  decided  that  an  as- 
signee in  bankruptcy  cannot  commence  an  action  for  the  recovery  of 
assets  in  a  United  States  district  court  other  than  that  in  which  the  bank- 
ruptcy proceedings  are  pending.  Lamb  v.  Damron,  7  N.  B.  R.  509;  14 
Fed.  Cas.  094. 

It  is  not  contempt  of  the  court  of  bankruptcy  for  adverse  claimants 
of  property  situated  in  other  districts  to  notify  the  custodians  not  to 
deliver  the  same  to  the  assignee.     In  re  Litchfield,  13  Fed.  Rep.  863. 

"  Where  the  necessary  parties  are  before  a  court  of  equity,  it  is  im- 
material that  the  res  of  the  contrpversy,  tvhether  it  be  real  or  personal 


36  The  Bankeuptoy  Law. 

property,  is  beyond  the  territorial  jurisdiction  of  tlie  tribunal.  It  has 
the  power  to  compel  the  defendant  to  do  all  things  necessary  according 
to  the  lex  loci  rei  sitae  which  he  could  do  voluntarily  to  give  full  effect 
to  the  decree  against  him."    Phelps  v.  McDonald,  99  U.  S.  298. 

Less  than  four  months  before  the  commencement  of  proceedings  in 
bankruptcy  In  Louisiana,  certain  creditors  in  New  York  brought  an  action 
against  the  bankrupts,  and  securing  service  by  publication,  attached 
money  due  the  bankrupts  from  parties  in  the  latter  state.  In  due  course, 
judgment  was  entered  in  their  favor.  The  proceedings  in  bankruptcy  in 
Louisiana  resulted  in  a  composition  by  the  terms  of  which  the  bank- 
rupts were  restored  to  the  possession  of  their  property,  and  authorized  to 
collect  debts  for  the  benefit  of  the  creditors.  Thereupon,  they  commenced 
a  suit  in  the  district  court  of  New  York  to  restrain  the  attaching  cred- 
itors there  from  proceeding  under  their  judgment.  The  court  heldi  that 
as  no  assignee  had  been  appointed  the  suit  could  not  be  maintained, 
and  that  while  the  attaching  creditors  were  bound  by  the  composition 
as  to  claims  against  the  bankrupts  in  personam,  their  rights  in  rem  against 
the  property  attached  were  not  impaired.  McGehee  et  al.  v.  Hentz  et  al., 
16  Fed.  Gas.  108. 

Courts  of  Bankruptcy  and  State  Courts. 

A  court  of  ban'ziruptcy  will  respect  the  construction  of  a  state  law 
placed  upon  it  by  the  courts  of  that  state,  but  decisions  of  the  supreme 
court  of  the  United  States  control  as  to  questions  of  general  juris- 
prudence.    Crooks  V.  Stuart  et  al.,  7  Fed.  Rep.  800. 

The  supreme  court  held  that  the  jurisdiction  conferred  on  federal 
courts  in  suits  by  the  assignee  under  the  Act  of  1867  was  concurrent  with 
that  of  state  courts  in  suits  of  which  they  had  full  cognizance.  Eyster 
V.  Gaff,  91  TJ.  S.  521. 

A  state  court  is  not  divested  of  its  jurisdiction  over  an  action  to  en- 
force a  specific  lien  on  property  of  the  debtor  by  the  subsequent  com- 
mencement of  proceedings  in  bankruptcy.    Kimberling  v.  Hartly  et  al 
1  Fed.  Kep.  571. 

The  adjudication  of  a  state  court  between  rival  claimants  to  a  certain 
fund  will  be  respected,  notwithstanding  it  involves  a  decision  affecting 
the  legal  rights  of  the  parties  under  the  Bankruptcy  Act.  Van  Kleeck  v. 
Miller  et  al.,  19  N.  B.  R.  484;  28  Fed.  Gas.  1025. 

The  enforcement  of  a  judgment  in  an  action  in  a  state  court,  com- 
menced after  the  commencement  of  proceedings,  may  be  restrained  by 
the  district  court  of  a  district  other  than  that  in  which  the  bankruptcy 
proceedings  were  pending.    In  re  Tifft,  19  N.  B.  R.  201;  23  Fed.  Gas.  1213. 

A  decree  by  a  United  States  court  directed  a  voluntary  assignee  to 
turn  over  the  property  of  the  bankrupt,  except  certain  moneys  which 
he  claimed  to  have  disbursed.  Held,  that  a  state  court  could  entertain 
jurisdiction  of  a  suit  to  compel  the  assignee  in  bankruptcy  to  account 
for  the  excepted  fund.    Neill  v.  Jackson  et  al.,  8  Fed.  Rep.  144. 


COUKTS    OF    BaNKKUPTCY JURISDICTION.  37 

Referring  to  the  Act  of  1841,  the  supreme  court  said  that  its  iiurpose 
was  to  seciue  a  prompt  and  effectual  administration  of  tlie  estate  of  the 
bankrupts  by  the  courts  of  the  United  States  without  the  assistance  of 
the  courts  of  the  states.  Ex  parte  Christy,  3  How.  282;  Morton  v.  Boyd, 
Id.  426. 

A  state  court  bad  jurisdiction  of  an  action  by  an  assignee  in  bank- 
ruptcy to  vacate  conveyances  made  by  the  bankrupt  before  the  com- 
mencement of  the  proceedings  as  fraudulent  against  creditors.  McKeuna 
V.  Simpson,  129  U.  S.  506. 

A  mortgage  may  be  foreclosed  in  a  state  court  notAvlthstandlng  the 
equity  of  redemption  has  been  conveyed-  by  the  assignee  in  bankruptcy_ 
of  the  mortgagor,  and  the  state  court  may  also  determine  whether  the 
mortgagee's  claim  was  against  the  land  or  the  fund  in  the  assignee's 
hands.    Adams  v.  Crittenden,  133*  U.  S.  296. 

The  court  of  bankruptcy  will  stay  an  action  in  a  state  court  to  recover 
a  provable  debt  until  the  question  of  discharge  is  determined,  and  that 
without  respect  to  whether  the  debt  would  or  would  not  be  released  by 
the  discharge.     In  re  Rosenberg,  3  Ben.  14;  20  Fed.  Cas.  1194. 

Proceedings  were  commenced  in  a  state  court  by  one  of  two  partners 
to  terminate  the  partnership  and  for  an  account,  and  a  receiver  was  ap- 
pointed. Subsequently,  the  other  partner  filed  a  petition  in  bankruptcy, 
claiming  that  the  partnership  was  insolvent  and"  asking-  that  it  be  de- 
clared bankrupt.  Held,  that  the  bankrupt  court  had  jurisdiction  notwith- 
standing the  proceedings  in  the  state  court.  In  re  Noonan,  5  Chi.  Leg. 
News,  557;  18  Fed.  Cas.  298. 

Held,  that  the  district  court  as  a  court  of  bankruptcy  has  jurisdiction 
over  incumbrances  on  the  property  of  the  bankrupt,  and  authority  to 
determine  their  validity,  extent  and  priority.  In  the  exercise  of  this 
jurisdiction,  the  district  court  will  proceed  by  injunction  upon  the  par- 
ties, and  not  against  the  state  courts  themselves.  Ex  parte  Christy,  3 
How.  292. 

A  state  court  which  has  obtained  jurisdiction  of  property  by  execution 
will  not  be  restrained  by  the  United  States  court  from  selling  the  same, 
but  this  rule  does  not  apply  to  proceedings  against  bankrupts.  Buddells 
V.  Simonton,  3  Biss.  322;  20  Fed.  Cas.  1325. 

Where  a  sheriff  seized  property  under  an  execution  on  a  judgment  ob- 
tained before  the  filing  of  the  petition  in  bankruptcy,  the  district  court 
will  not  order  such  property  to  be  taken  out  of  his  hands  until  the  writ 
is  set  aside  for  cause  shown,  and  upon  proper  proceedings.  In  re  Shuey, 
9  N.  B.  R.  526;  22  Fed.  Gas.  45. 

Where  a  bankrupt  Is  arrested  on  a  capias  ad  satisfaciendum  from  a 
state  court,  application  for  discharge  from  arrest  should  be  made  in  the 
first  Instance  to  the  state  court;  tills  to  avoid  possible  conflict  of  juris- 
diction.    In  re  O'Mara,  4  Biss.  506;  18  Fed.  Cas.  690. 

In  March,  a  debtor  was  lodged  in  jail  on  a  judgment  for  a  tort.  In 
July,  he  filed  his  petition  in  bankruptcy,  and  on  the  January  following, 


38  The  Bankeuptcy  Law. 

he  received  his  discharge.   Judge  Drummond  held  that  he  must  be  re- 
leased from  custody.    In  re  Simpson,  2  N.  B.  E.  47;  22  Fed.  Cas.  170. 

After  proceedings  In  bankruptcy  were  commenced,  a  creditor's  suit 
in  the  state  court  was  brought,  the  bankrupt,  his  assignee,  and  his  wife 
being  made  parties.  The  suit  was  settled  by  the  wife  signing,  under 
moral  duress,  and  pressure,  an  agreement  to  relinquish  three-fourths 
of  her  interest  In  lands  Inherited  from  her  father;  the  agreement  not 
being  recorded  as  deeds  were  required  to  be,  but  being  ratified  by  the 
state  court.  It  was  held  that  the  proceeding  In  the  state  court  -nas 
coram  non  judice,  and  that  the  bankruptcy  court  had  exclusive  juris- 
diction In  the  premises,  and  that  the  right  of  the  wife  who  had  a  "  speci- 
fic claim  "  was  not  affected  by  the  state  court  proceeding.  In  re  Ander- 
son, 23  Fed.  Eep.  482. 

A.  was  sued  in  a  state  court  and  his  account  in  a  bank  attached.  He 
released  the  money  by  giving  a  bond,  and  then  delivered  the  amount  to 
a  third  person  to  secure  his  sureties.  More  than  a  year  afterward,  pro- 
ceedings in  bankruptcy  were  commenced  against  him.  It  was  held 
that  the  assignee  could  not  have  an  injunction  against  further  proceed- 
ings in  the  state  court,  and  could  not  take  possession  of  the  money  as 
assets  of  the  estate.    In  re  Aubrey,  17  N.  B.  R.  287;  1  Fed.  Cas.  315. 

It  was  held  under  the  Act  of  1867  that  only  the  circuit  or  district 
court  of  the  district  in  which  the  bankruptcy  proceedings  were  pending 
could  enjoin  the  prosecution  of  a  suit  in  a  state  court  of  another  state  to 
foreclose  a  mortgage  on  the  bankrupt's  property,  commenced  after  the 
filing  of  the  petition.  Markson  et  al.  v.  Heaney,  1  Dill.  497;  16  Fed. 
Cas.  760. 

The  bankrupt  court  has  jurisdiction  over  the  property  of  a  bankrupt, 
although  proceedings  have  been  instituted  in  a  state  court  for  the  ap- 
pointment of  a  receiver  of  the  bankrupt's  property.  If  the  property  has 
not  been  vested  by  law  in  such  receiver.  In  re  Nolan,  8  Ben.  550;  18  Fed. 
Cas.  296. 

Paramount  power  of  congress  to  establish  uniform  laws  on  bank- 
ruptcy throughout  the  United  States  is  expressly  given  by  the  Con- 
stitution, and  when  congress  has  exercised  this  power,  state  legislation 
and  the  jurisdiction  and  action  of  the  state  courts  must  yield  to  tlie 
paramount  authority  of  the  national  government.  It  was  held  in  this 
case  that  although  proceedings  under  the  state  insolvent  laws  had  been 
instituted,  and  receivers  had  taken  charge  of  the  property  of  the  allesed 
bankrupt  before  bankruptcy  proceedings  were  Instituted,  superior  juris- 
diction existed  in  the  bankruptcy  court  to  administer  the  estate.  In  re 
Safe  Deposit  Inst,  7  N.  B.  E.  392;  21  Fed.  Cas.  139  (1872). 

The  bankrupt  had  given  an  order  to  certain  creditors  qu  a  general 
fund  In  the  hands  of  state  officers.  The  latter  had  refused  to  accept  it. 
The  court  of  bankruptcy  restrained  the  holders  of  the  order  from  prose- 
cuting a  bill  in  equity  against  the  ofiicers  in  a  state  court,  and  further 
held  that  the  bankrupt  himself,  before  proceedings,  and  the  assignee, 
after  his  appointment,  is  a  necessary  party  to  such  a  suit.  Walker  v. 
Seigel  et  al.,  12  N.  B.  R.  394;  29  Fed.  Cas.  49. 


Courts  of  Bankruptcy  —  Jurisdiction.  39 

The  wife  of  the  bankrupt  brought  suit  in  a  state  court  against  parties 
who  were  in  possession  of  a  sealed  package  which  she  claimed  to  own. 
The  state  court  refused  to  substitute  the  trustees  in  bankruptcy  for  the 
defendants,  and  the  trustees  thereupon  brought  a  suit  in  the  court  of 
bankruptcy  to  determine  the  ownership  of  the  package  and  for  an  in- 
junction to  restrain  the  wife  from  proceeding  in  the  state  court.  The 
court  granted  the  injunction.  Wilkinson  et  al.  v.  Barnard  et  al.,  9  Ben. 
249;  29  Fed.  Cas.  1254. 

A  creditor's  bill  had  been  filed  against  the  bankrupt,  and  a  receiver  ap- 
pointed. The  court  held  that  the  proceedings  in  bankruptcy  supersede 
all  proceedings  for  the  administration  of  the  assets  of  the  debtor,  sub- 
ject only  to  priorities  which  are  obtained  by  any  creditors  by  the  use  of 
diligence,  which  are  to  be  respected,  and  which  should  be  paid  in  the 
order  of  priority  according  to  whatever  rights  have  been  obtained.  In 
re  Whipple,   6  Biss.   516;  29  Fed.   Cas.   928. 

A  creditor  may  prosecute  an  attachment  suit  in  a  state  court  to  juag- 
ment  and  levy,  in  the  absence  of  objection  by  the  assignee  in  bankruptcy. 
Mattocks  V.  Ferrington,  2  Hask.  331;  16  Fed.  Cas.  1147. 

One  of  three  partners  petitioned  to  have  the  copartnership  adjudged 
bankrupt.  The  two  other  partners  answered  that  before  the  filing  of 
the  petition  a  judgment  was  entered  in  a  state  court  dissolving  a  partner- 
ship and  appointing  a  receiver.  It  was  held  by  Judge  Blatchford  th;it 
the  state  court  had  acquired  jurisdiction  of  the  three  copartners  and 
their  copartnership  property.  The  court,  therefore,  refused  to  adjudicate 
the  two  opposing  partners  as  bankrupts.  In  re  Oehninger,  8  Ben.  487;  18 
Fed.  Cas.  594. 

If  a  bankrupt  is  restrained  of  his  liberty  under  process  of  a  state  court 
in  violation  of  the  laws  of  the  United  States,  the  United  States  district 
court  would,  under  the  provisions  of  the  Act  February  5,  1867,  have 
power  to  release  him  on  haieas  corpus.  In  re  Seymour,  1  N.  B.  R.  29; 
1  Ben.  348  (1867). 

Judge  Blodgett  held  under  the  Act  of  1867  that  a  state  court  has  juris- 
diction of  an  action  by  an  assignee  in  bankruptcy  to  collect  assets  of  the 
bankrupt.     Clark  v.  Ewing,  3  Fed.  Rep.  83. 

A  court  of  bankruptcy  is  not  bound  by  allegations  in  a  complaint,  made 
by  a  party  to  the  proceedings,  in  a  suit  in  a  state  court.  In  re  Williams  et 
al.,  6  Biss.  233;  29  Fed.  Cas.  1318. 

As  a  general  rule,  the  coure  of  bankruptcy  will  not  interfere  where 
other  courts  have  assumed  full  jurisdiction  of  property  upon  which  liens 
are  claimed  to  exist.    In  re  Taliafero,  3  Hughes,  422;  23  Fed.  Cas.  674. 

A  general  creditor's  suit  in  chancery  cannot  be  brought  in  another 
court  than  the  court  of  bankruptcy  against  the  bankrupt  after  his  ad- 
judication.   In  re  Anderson,  2  Hughes,  378;  1  Fed.  Oias.  831. 

A  judgment  in  a  state  court  is  conclusive  upon  an  assignee  in  bank- 
ruptcy when  he  appears  and  defends  in  the  action.  Winchester  v.  Heis- 
kell,  199  U.  S.  450;  120  Id.  278. 


40  The  Bankruptcy  Law. 

It  was  held  that  the  assignee  being  made  a  party  had  no  authority 
to  consent  to  a  decree  in  a  state  court  in  a  suit  prosecuted  in  conflict 
with  the  jurisdiction  of  the  banla-uptcy  court.    In  re  Anderson,  23  Fed. 

Bep.  482. 

Under  section  1  of  the  Act  of  1867,  one  of  the  powers  conferred  upon 
the  court  in  banliruptcy  was  the  "  ascertainment  and  liquidation  of  liens 
and  other  specific  claims."  This  was  held  to  refer  only  to  cases  where 
the  claims  had  not  been  previously  determined  by  other  competent 
tribunals.    The  Ironsides,  4  Biss.  518;  13  Fed.  Cas.  103. 

H.  had  failed  to  obey  an  order  of  the  state  court  on  proceedings  supple- 
mentary to  execution  and  an  order  had  been  issued  for  him  to  show 
cause  why  he  should  not  be  punished  for  contempt.  Subsequently  pro- 
ceedings in  involuntary  bankruptcy  were  commenced  against  him.  The 
court  held  that  it  was  not  a  proper  case  for  an  injunction  against  the 
proceedings  for  contempt.    In  re  Hill,  2  N.  B.  R.  140;  12  Fed.  Cas.  49. 

A  court  of  bankruptcy  has  no  jurisdiction  to  correct  or  annul  a  judg- 
ment rendered  in  a  state  court.  In  re  Dunn,  2  Hughes,  160;  8  Fed.  Cas. 
93. 

Justice  Bradley  decided  that  a  receiver  in  possession  of  mortgaged 
property  under  an  order  of  a  state  court,  before  the  commencement  of 
proceedings  in  bankruptcy,  can  only  be  dispossessed  by  the  payment  and 
redemption  of  the  mortgage.  The  court  in  bankruptcy  having  ordered 
such  property  to  be  taken  from  the  hands  of  the  receiver  and  sold,  the 
sale  was  set  aside  and  the  purchase  money  returned.  Davis  v.  R.  R. 
Co.,  1  Woods,  661;  7  Fed.  Cas.  164. 

A  national  bank  held  a  second  mortgage  on  certain  property  of  the 
bankrupt,  and  the  assignee  desired  to  contest  the  right  of  the  bank 
to  take  or  hold  such  secui-ity.  The  court  enjoined  the  mortgagee  from 
foreclosing  in  a  state  court.  In  re  Duryea,  17  N.  B.  R.  495;  8  Fed,  Cas. 
131. 

After  a  composition  had  been  confirmed,  and  the  money  was  awaiting 
distribution,  certain  parties  applied  for  a  receiver  of  the  amounts  due 
three  of  the  creditors,  to  ^vithhold  them  pending  the  result  of  proceed- 
ings in  another  court.  The  application  was  denied.  In  re  Kolilsaat,  18 
N.  B.  R.  570;  14  Fed.  Cas.  833. 

Upon  the  sale  of  certain  premises  by  the  assignee  in  bankruptcy, 
the  bankrupt  agreed  with  the  purchaser  to  vacate  them  at  a  certain 
time,  but  failed  to  do  so.  An  application  by  the  purchaser  to  the  court 
of  bankruptcy  for  the  delivery  of  possession  to  him  was  denied  on  the 
ground  that  the  laws  of  the  state  afforded  him  an  ample  remedy  as 
against  a  tenant  holding  over.  In  re  Hale,  19  N.  B.  R.  330;  11  Fed.  Cas. 
181. 

Under  the  Act  of  1S41,  the  district  court  could  issue  an  injunction 
against  an  attachment  suit  in  a  state  court  commenced  before  the  pro- 
ceedings in  bankruptcy.  If  the  attaching  creditor  does  not  reside  in 
the  district,  the  injunction  can  be  made  against  his  agents  and  attorneys. 
In  re  Bellows,  3  Story,  428;  3  Fed.  Cas.  138  (1844). 


CouETs  OF  Bankruptcy  —  Jurisdiction.  41 

Justice  Miller  expressed  the  opinion  that  the  Act  of  1867  did  not  give 
tlie  federal  courts  exclusive  jurisdiction  of  an  action  by  an  assignee  in 
banlsruptcy,  and  added:  "  If  the  state  courts  failed  to  recognize  his  legal 
rights,  a  presumption  not  here  to  be  indulged,  he  can,  in  the  proper 
mode,  bring  the  case  from  the  highest  court  of  the  state  to  the  highest 
court  of  the  United  States."  Johnson  v.  Bishop,  Woolw.  324;  13  Fed.  Oas. 
732. 

B.  and  C.  as  copartners  had  been  adjudged  bankrupts  and  had  ap- 
pealed to  the  circuit  court.  C.  had  brought  suits  against  B.,  concerning 
the  joint  property  and  the  proceedings  in  bankruptcy  in  a  state  court. 
The  circuit  court  decided  that  it  had  no  authority  to  issue  a  writ  of 
prohibition  to  the  state  court  forbidding  further  proceedings  in  such 
suits.  In  re  Bininger  et  al.,  7  Blatchf.  159;  3  Fed.  Cas.  407.  Later,  the 
court  refused  to  require  C.  to  elect  in  which  court  he  would  proceed. 
7  Blatchf.  168;  8  Fed.  Cas.  411. 

An  assignee  cannot  maintain  an  action  in  the  district  court  to  recover 
possession  of  the  property  of  a  bankrupt  from  a  sheriff  whp  holds  it  by 
an  attachment  issued  out  of  a  state  court  before  the  filing  of  the  peti- 
tion.    Johnson  v.  Bishop,  Woolw.  324;  13  Fed.  Cas.  732. 

A  suit  already  pending  in  a  state  court  in  which  the  title  to  real 
estate  surrendered  by  the  bankrupt  is  in  dispute  will  not  be  restrained 
by  the  district  court;  but  the  district  court  sitting-  in  bankruptcy  m.ny 
restrain  the  parties  from  proceeding  in  the  state  court  to  take  the  prop- 
erty out  of  the  possession  of  the  assignee  in  bankruptcy.  Hewitt  v. 
Norton,  1  Wood.  68;  12  Fed.  Gas.  71. 

A  court  of  bankruptcy  refused  to  grant  an  injunction  against  tlie 
foreclosure  of  a  mortgage  in  a  state  court  against  a  bankrupt  where 
his  assignee  had  repeatedly  appeared,  permitted  the  action  to  proceed, 
and  did  not  object  for  more  than  two  years,  and  where  it  was  not  cer- 
tain that  the  estate  would  be  injured  by  the  foreclosure.  Augustine  v. 
•McFarland,  13  N.  B.  R.  7;  2  Fed.  Cas.  212. 

It  was  held  by  Justice  Baldwin  In  an  elaborate  opinion  that  a  dis- 
trict court  of  the  United  States  has  no  power  in  any  case  to  issue  an 
injunction  against  the  process  of  a  state  court.  Dudley's  Case,  1  Penn. 
L.  J.  302;  7  Fed.  Cas.  1150  (1842). 

When  a  mortgagee  brings  a  suit  in  a  state  court  to  foreclose  a  mort- 
gage against  the  bankrupt,  after  adjudication,  and  the  assignee  in  bank- 
ruptcy claims  that  it  is  void,  the  court  of  bankruptcy  may  restrain 
the  foreclosure.  In  re  Kerosene  Oil  Co.,  3  Ben.  35;  14  Fed.  Cas.  379. 
Upon  appeal  to  the  circuit  court,  Justice  Nelson  ordered  that  the  petition 
of  the  assignee  be  amended  and  filed  as  a  bill  in  equity,  holding  that 
the  injunction  could  only  be  granted  upon  a  plenary  suit  in  chancej'y. 
Ibid.,   6  Blatchf.   521;   14  Fed.   Cas.   380. 

An  action  was  brought  in  a  state  court  to  recover  a  debt  alleged  to 
have  been  contracted  by  fraud,  and  in  that  action  the  bankrupt  was 
arrested  and  gave  bail.  He  applied  to  the  court  of  bankruptcy  for  an 
order  discharging  him  from  arrest  and  releasing  his  bail.  The  court 
affirmed  its  authority  to  grant  the  relief  prayed  for,  provided  his  ar- 


4r3  The  Bankhuptcy  Law. 

rest  was  founded  on  a  debt  from  which  he  would  be  released  by  a  dis- 
charge in  bankruptcy.    In  re  Glaser,  8  Ben.  180;  10  Fed.  Cas.  464. 

While  proceedings  in  bankruptcy  were  pending,  some  of  tne  petition- 
ing creditors  brought  an  action  in  a  state  court  for  the  arrest  of  the 
bankrupts  on  the  ground  that  they  had  fraudulently  contracted  their 
indebtedness,  and  had  disposed  of  a  large  part  of  their  property  to  de- 
fradd  their  creditors.  The  court  of  bankruptcy  enjoined  proceedings  in 
this  action  pending  the  question  of  the  discharge.  In  re  Goldstein  et 
al.,  52  How.  Pr.  420;  10  Fed.  Cas.  569. 

A  debtor  arrested  on  process  from  a  state  court  had  applied  for  the 
benefit  of  the  act  for  the  relief  of  poor  debtors.  Before  the  hearing, 
he  filed  his  petition  in  bankruptcy,  and  was  adjudged  a  bankrupt.  There- 
upon he  filed  a  petition  that  he  be  released  from  arrest,  and  that  being 
denied,  subsequently  filed  a  petition  for  an  injunction  against  furtlier 
proceedings  by  the  creditors  in  the  state  court.  This  petition  was  also 
dismissed.  On  appeal,  the  circuit  court  sustained  the  action  of  the  lower 
court.  Minon.  v.  Van  Nostrand  et  al.,  Holmes,  251;  17  Fed.  Cas.  454; 
s.  c.  1  Low.  458;  17  Fed.  Cas.  455. 

A  court  of  bankruptcy  will  not  stay  proceedings  in  a  state  court  to 
recover  a  debt  incurred  by  fraud,  which  would  not  be  affected  by  a  dis- 
charge in  bankruptcy.    In  re  Leibenstein  et  al.,  4  Chi.  Leg.  News,  309; 

15  Fed.  Cas.  250. 

Parties  may  be  enjoined  by  a  court  of  bankruptcy  from  proceeding  to 
judgment  and  execution  in  a  state  court  during  the  pendency  of  pro- 
ceedings.    Penny  v.  Taylor,  10  N.  B.  R.  200;  19  Fed.  Cas.  194. 

Congress  cannot  impose  duties  on  state  courts,  nor  require  them  to 
entertain  suits  to  carry  out  the  objects  of  the  Bankrupt  Act.  Mitchell 
V.  Great  Works  M.  &  M.  Co.,  2  Story,  648;  17  Fed.  Cas.  496  (1843). 

Under  the  Act  of  1841  a  state  court  had  no  jurisdiction  of  a  suit  by  an 
assignae  in  bankruptcy  to  avoid  a  lien  on  the  property  of  a  bankrupt  on 
the  ground  of  fraud.     McLean  v.  LaFayette  Bank  et  al.,  3  McLean,  185; 

16  Fed.  Cas.  253  (1843). 

When  a  suit  in  a  state  court  to  enforce  a  lien  will  tend  to  draw  to  it 
the  administration  of  the  Bankrupt  Act,  a  circuit  court  of  the  United 
States  will  restrain  it  by  injunction.    Ibid. 

An  injunctional  order  was  issued  in  bankruptcy  proceedings  restrain- 
ing a  judgment  creditor  and  all  other  persons  from  selling  the  property 
of  the  bankrupt  on  a  judgment  entered  in  a  state  court.  Held,  that  the 
sheriff  and  judgment  creditor  were  informed  by  the  service  of  the  order 
as  to  what  they  were  forbidden  to  do,  and  the  fact  that  they  were  not 
named  would  make  no  difference.  In  re  Lady  Bryan  Min.  Co.,  6  N  B. 
R.  252;  14  Fed.  Cas.  928. 

Congress  has  no  power  to  vest  in  state  courts  jurisdiction  to  carry  into 
effect  a  bankrupt  law.  McLean  v.  LaFayette  Bank  et  al.,  3  McLean, 
185:  16  Fed.  Cas.  253  (1843). 

A  court  of  bankruptcy  may  enjoin  the  sale  of  property  under  an  execu- 
tion issued  from  a  state  court  before  the  filing  of  the  petition  in  bank- 
ruptcy.   In  re  Lady  Bryan  Min.  Co.,  6  N.  B.  R.  2.-i2;  14  Fed.  Cas.  928. 


Courts  of  Bankruptcy  —  Jurisdiction.  43 

A  decision  by  a  court  of  banliruptcy  that  a  transaction  was  a  viola- 
tion of  the  banlirupt  law  is  binding  upon  the  state  courts,  and  a  party 
feeling  himself  aggrieved  is  bound  to  come  into  the  court  of  bankruptcy 
for  relief.    In  re  Miller,  6  Biss.  30;  17  Fed.  Cas.  293. 

The  state  court  does  not  necessarily  lose  its  jurisdiction  of  a  common- 
law  or  equity  suit  simply  because  the  plaintiff  is  an  assignee  in  bank- 
ruptcy. Mitchell  V.  Great  Works  M.  &  M.  Co.,  2  Story,  648;  17  Fed. 
Cas.  496  (1843). 

Where  a  court  of  bankruptcy  has  ordered  the  sale  of  mortgaged  prem- 
ises, a  state  court  is  ousted  of  jurisdiction  of  proceedings  in  foreclosure. 
In  re  Devore,  16  N.  B.  R.  56;  7  Fed.  Cas.  570. 

One  of  three  members  of  a  dissolved  firm  commenced  proceedings  in 
a  state  court  for  a  settlement  of  partnership  affairs,  and  was  himself 
appointed  receiver  of  the  partnership  property  in  that  action.  Two 
months  later,  the  other  members  of  the  firm  filed  a  petition  that  the 
firm  be  adjudged  bankrupt.  It  was  held  that  the  court  of  bankruptcy 
had  jurisdiction  over  the  partnership  property,  and  that  the  third  part- 
ner should  be  restrained  from  disposing  of  tlie  assets  pending  adjudica- 
tion.   In  re  Hathorn  et  al.,  2  Woods,  73;  11  Fed.  Cas.  822i 

A  bankrupt  in  arrest  under  process  from  a  state  court  in  a  civil  action 
ex  delicto  cannot  be  released  by  the  United  States  district  court  upon  a 
petition  for  a  writ  of  habeas  corpus.  In  re  Devoe,  1  Low,  251;  7  Fed. 
Cas.  565. 

When  congress  adopts  substantially  an  insolvent  law  of  one  of  the 
states  as  a  Bankrupt  Act,  the  federal  courts  are  not  bound  by  the  de- 
cisions of  the  courts  of  that  state  in  construing  it.  In  re  Knight,  2  Biss. 
518;  14  Fed.  Cas.  752. 

The  district  court  is  bound  to  see  that  the  assignee  in  bankruptcy 
is  not  forcibly  dispossessed  of  the  property  belonging  to  the  bankrupt 
that  had  come  into  his  hands.  So  held  in  a  case  where  property  was 
taken  from  the  possession  of  the  assignee  under  a  writ  of  replevin  is- 
sued by  a  state  court  in  a  proceeding  in  which  the  assignee  was  not  a 
party,  and  his  title  was  not  in  controversy.  In  re  Clark,  9  Blatchf.  379; 
5  Fed.  Cas.  844. 

The  rights  of  creditors  will  be  determined  by  the  Bankrupt  Act, 
and  not  by  a  state  law,  when  an  adjudication  has  been  had  in  bank- 
ruptcy, and  the  assignee  under  the  state  law  has  surrendered  the  prop- 
erty.   In  re  Bonsfleld  &  Poole  M.  Co.,  17  N.  B.  R.  153;  3  Fed.  Cas.  1016. 

The  circuit  court,  affirming  the  district  court,  decided  that  where  one 
member  of  the  firm  had  died,  and  his  share  in  the  partnership  had 
gone  into  the  hands  of  an  administrator  by  virtue  of  proceedings  in  the 
probate  court,  and  a  petition  had  been  filed  against  the  firm,  the  court 
of  bankruptcy  would  not  take  the  estate  out  of  the  hands  of  tlie  ad- 
ministrator.   In  re  Daggett,  8  N.  B.  R.  287,  433;.  6  Fed.  Cas.  1107,  1108. 

After  adjudication,  a  bankrupt  was  taken  into  custody  by  the  sheriff 
on  a  judgment  against  him  for  costs  in  an  action  in  a  state  court.    The 


44  The  Bankkuptoy  Law. 

court  of  bankruptcy  orderud  bis  cliscbarge.  In  re  Borst,  2  N.  B.  R. 
171;  3  Fed.  Cas.  913. 

Section  1  of  the  Act  of  1867  conferred  on  the  district  court  power  to 
enjoin  proceedings  in  a  state  court  by  a  creditor  to  enforce  a  lien 
on  the  property  of  the  banlirupt  When  there  is  nothing  to  be  done  but 
to  ascertain  an  alleged  lien,  this  power  can  be  exercised  summarily.  In 
re  Clark,  9  Blatchf.  372;  5  Fed.  Cas.  841. 

A  decree  of  foreclosure  was  made  after  the  filing  of  a  petition  in  bank- 
ruptcy, but  before  the  service  of  an  injunction  upon  the  mortgagee  in 
the  bankruptcy  proceedings.  After  adjudication,  the  mortgaged  prop- 
erty was  sold,  and  thereupon  the  assignee  sought  to  have  the  sale  and 
the  mortgage  itself  set  aside  on  the  ground  of  usury.  The  court  decided 
that  the  decree  of  the  state  court  barred  the  right  of  the  assignee  to  raise 
the  question  of  usury,  and  denied  the  application.  Cutter  v.  Dingee,  8 
Ben.  469;  6  Fed.  Cas.  1078. 

AVhere  mortgaged  property  is  in  the  possession  of  receivers  appointed 
by  a  state  court,  the  district  court  has  no  jurisdiction  over  a  petition 
by  the  mortgagee  for  a  sale  of  the  property  by  the  assignee  in  bank- 
ruptcy.   Bradley  et  al.  v.  Healey,  Holmes,  451;  3  Fed.  Cas.  11.53. 

A  court  of  bankruptcy  is  not  authorized  to  vindicate  the  title  of  the 
purchaser  to  lands  sold  by  the  assignee.  That  is  left  to  the  state  courts. 
Briggs  V.  Stephens,  7  Law  Rep.  281;  4  Fed.  Cas.  124  (1844). 

The  bankrupt  was  sued  for  a  debt  in  a  state  court  after  the  commence- 
ment of  the  proceedings.  Thereafter  a  composition,  including  the  debt 
upon  which  he  was  sued,  was  confirmed.  He  applied  to  the  state  court 
for  leave  to  plead  the  composition  as  a  defense,  which  application  was 
refused.  Subsequently  he  applied  to  the  court  of  bankruptcy  to  enjoin  the 
creditor  from  intei'fering  with  his  property  for  the  Indebtedness  on  the 
judgment,  which  in  the  meantime  had  been  entered  in  the  state  court. 
The  court  of  bankruptcy  decided  that  it  had  no  power  to  issue  such  an 
injunction.     In  re  Nebenzahl  et  al.,  9  Ben.  243;  17  Fed.  Cas.  1269. 

Upon  the  filing  of  a  petition  in  bankruptcy,  an  injunction  was  Issued  to 
restrain  the  sale  of  the  debtor's  property  on  execution.  The  bankrupts 
had  joined  issue  on  the  allegations  in  the  petition,  and  demanded  a  jury. 
Thereupon  they  made  a  motion  to  dissolve  the  injunction  on  the  merits. 
The  court  refused  to  dispose  of  the  issues  on  a  motion,  notwithstanding 
the  property  was  perishable,  and  further  held  that  it  had  no  power  to  sell 
the  property  until  it  came  into  the  possession  of  the  court.  In  re  Metzler, 
1  Ben.  356;  17  Fed.  Cas.  240. 

The  holder  of  a  chattel  mortgage  was  enjoined  from  taking  possession 
of  the  mortgaged  goods.  He  had  knowledge  of  the  injunction,  but  it 
had  not  been  served  upon  him.  He  was  held  guilty  of  contempt  in  bring- 
ing an  action  of  replevin  and  recovering  possession  of  the  property.  In 
re  Feeny,  1  Hask.  304;  8  I'ed.  Cas.  1124. 

Judge  Hughes,  of  the  district  court  of  Virginia,  used  this  language: 
"  It  would  be  too  great  stretch  of  the  jurisdiction  of  this  court  to  take 
a,  fund  from  the  estate  of  a  decedent,  not  in  bankruptcy,  to  pay  the  debt 


CouETS  OF  Bankruptcy  —  Juhisdiction.  45 

of  a  partnership,  not  in  banljruptcy,  on  the  single  ground  that  the  banls- 
rupt  himself  was  one  of  that  firm."  The  decision  was  affirmed  by  tlie 
circuit  court  on  appeal.    In  re  Frazier,  2  Hughes,  293;  9  Fed.  Cas.  735. 

Funds  in  the  hands  of  the  assignee  awaiting  distribution  cannot  be 
garnished  by  process  from  a  state  court.  In  re  Bridgman,  2  N.  B.  R. 
252;  4  Fed.  Cas.  112. 

In  the  exercise  of  its  power  to  ascertain  and  liquidate  liens  upon  a 
bankrupt's  property,  the  court  of  banliruptcy  may  enjoin  a  creditor  from 
enforcing  a  judgment  in  a  state  court;  but  it  will  not  interfere  after  the 
sale  of  the  property  under  execution  on  such  a  judgment;  In  re  Fuller, 
1  Saw.  243;  9  Fed.  Cas.  978. 

"  No  doubt  can  be  entertained  of  the  power  of  a  bankruptcy  court  to 
control  the  estire  estate  of  the  bankrupt,  both  contingent  and  actual, 
whether  it  be  not  or  be  the  subject  of  litigation  in  other  courts,  and 
in  whatever  stage  of  litigation.  Whether,  therefore,  a  bankruptcy  court 
can  exercise  its  jurisdiction  over  such  part  of  the  bankrupt's  estate  as 
may  be  the  subject  of  litigation  In  other  courts,  or  be  covered  by  liens 
equal  to  or  exceeding  its  value  is  not  a  question  of  power  and  right,  but 
only  of  discretion."    In  re  Addison,  8  Hughes,  430;  1  Fed.  Cas.  167. 

M.  was  adjudged  a  bankrupt  on  the  ground  that  he  had  transferred  some 
of  his  goods  to  B.  with  intent  to  give  him  a  preference.  Immediately 
upon  adjudication,  the  marshal  seized  the  property  transferred  to  B., 
and  turned  it  over  to  the  assignee,  who  sold  it.  B.  brought  an  action 
against  the  marshal  and  the  assignee  to  recover  damages  for  taking  the 
property.  The  district  court  enjoined  B.  from  proceeding  in  this  action, 
and  on  appeal  to  the  circuit  court.  Judge  Drummond  sustained  its  ac- 
tion, and  used  this  language:  "Although  it  might  be  unpleasant  to 
interfere  with  the  state  court,  still  when  the  law  could  not  be  properly 
administered  by  the  bankrupt  court,  owing  to  the  interference  of  the 
state  court,  and  its  determination  to  adjudicate  on  the  rights  of  parties 
and  property,  as  in  this  case,  then  the  bankrupt  court  ought  not  to 
hesitate  to  assert  Its  authority."  In  re  Miller,  6  Biss.  30;  17  Fed.  Cas. 
293. 

After  proceedings  in  bankruptcy  had  been  commenced,  the  mortgagees 
of  certain  real  estate  belonging  to  a  bankrupt  took  possession  of  it  with 
a  view  to  foreclosure  under  the  statute.  The  court  decided  that  he 
must  apply  to  the  court  in  which  the  proceedings  in  bankruptcy  were 
pending,  which,  under  the  Act  of  1867,  has  exclusive  jurisdiction  over  the 
property.  Hutchins  v.  Muzzy  Iron  Works,  8  N.  B.  K.  458;  12  Fed.  Cas. 
1076. 

In  a  suit  by  an  assignee  in  bankruptcy,  the  district  cDurt  refused  to 
examine  into  the  validity  of  a  judgment  confessed  by  the  bankrupt  in 
a  state  court,  the  jurisdiction  of  which  was  not  denied.  Atkinson  v. 
Purdy,  Crabbe,  551;  2  Fed.  Uas.  IIZ  (1844). 

It  was  held  that  the  Act  of  1867  did  not  impair  the  provision  of  the  Act 
of  March  3,  1703,  forbidding  injunctions  to  restrain  proceedings  in  state 
courts.    Campbell's  Case,  1  N.  B.  R.  165;  4  Fed.  Cas.  1153. 


46  The  Bankeuptcy  Law. 

The  Law  of  1841  was  held  not  to  authorize  the  court  to  release  a  bank- 
rupt from  artc^  before  discharge.  In  re  Comstocli,  5  Law  Rep.  163;  6 
Fed.  Cas.  231  (1842). 

An  action  of  replevin  for  the  alternative  remedy  of  securing  the  value 
of  the  goods  vrlll  be  stayed  pending  the  question  of  the  bankrupt  de- 
fendant's discharge.    In  re  Cohen,  19  N.  B.  R.  133;  6  Fed.  Cas.  14. 

It  vs^as  held  to  be  a  contempt  of  court  for  a  sheriff:  and  mortgagee  to 
levy  on  mortgaged  property  in  the  possession  of  the  bankrupt  under  a 
decree  of  foreclosure,  after  an  assignee  had  been  appointed.  Byrd  v. 
Harrold  et  al.,  18  N.  B.  R.  433;  4  Fed.  Cas.  949. 

The  court  of  bankruptcy  loses  jurisdiction  after  the  discharge,  and  par- 
ties may  then  seek  relief  in  state  courts.  Penny  v.  Taylor,  10  N.  B.  R. 
200;  19  Fed.  Cas.  164. 

The  respondents  disobeyed  an  injunction  forbidding  them  to  proceed 
with  an  execution  under  a  judgment  from  a  state  court.  It  was  held  that 
they  were  punishable  for  contempt.  In  re  Atkinson,  7  N.  B.  R.  143;  2 
Fed.  Cas.  96. 

State  courts  are  not  bound  to  take  judicial  notice  of  adjudications  In 
bankruptcy  by  tne  district  court.  Johnson  v.  Bishop,  Woolw.  £iz4;  13 
Fed.  Cas.  732. 

While  proceedings  were  pending,  the  bankrupt  was  arrested  on  pro- 
cess of  a  state  court  on  a  debt  for  which  he  was  not  entitled  to  a  dis- 
charge because  it  was  contracted  in  fraud.  It  was  held  that  he  was  not 
entitled  to  release  on  habeas  corpus.  In  re  Alsberg,  16  N.  B.  R.  116;  1  Fed. 
Cas.   557. 

"  The  commencement  of  proceedings  in  bankruptcy  transferred  to  this 
court  the  jurisdiction  over  the  bankrupt,  his  estate,  and  all  parties  and 
questions  connected  therewith,  and  operated  as  a  supersedeas  of  the  pro- 
cess in  the  hands  of  the  sheriff,  and  an  injunction  against  all  other  pro- 
ceedings than  such  as  might  thereupon  be  had  under  the  authority  of 
this  court  until  the  question  of  bankruptcy  shall  nave  been  disposed 
of."    Jones  V.  Leach  et  al.,  1  N.  B.  R.  595;  13  Fed.  Cas.  987. 

Under  a  provisional  warrant,  the  marshal  seized  certain  property 
claimed  by  a  third  person.  The  latter  sued  the  marshal  in  a  state  court 
for  trespass.  The  assignee  appeared  and  asked  for  an  injunction  against 
the  prosecution  of  the  suit  in  a  state  court.  The  petition  was  denied,  and 
it  was  held  that  the  petitioning  creditors  were  bound  to  defend  the  mar- 
shal in  such  action.    In  re  Marks,  2  N.  B.  E.  575;  16  Fed.  Cas.  764. 

An  adjudication  relates  back  and  dissolves  an  attachment  by  a  state 
court  from  the  date  of  the  filing  of  the  petition.  In  re  Preston,  6  N.  B. 
R.  545;  19  Fed.  Cas.  1291. 

The  district  court,  as  a  court  of  bankruptcy,  ordered  a  stay  of  pro- 
ceedings in  a  state  court  against  a  bankrupt,  until  the  question  of  dis- 
charge could  be  determined.    In  re  Reed,  1  N.  B.  R.  1;  20  Fed.  Cas.  416. 

A  court  of  bankruptcy  cannot  increase  or  decrease  alimony  decreed  by 
a  state  court,  notwithstanding  it  is  a  lien  upon  the  bankrupt's  estate. 
In  re  Garrett,  2  Hughes,  235;  10  Fed.  Cas.  47. 


COUETS    OF    BaNKEUPTCY JuEISDICTION.  47 

Proceedings  in  bankruptcy  will  not  oust  a  state  court  from  its  jurisdic- 
tion of  a  foreclosure  case  when  the  issues  have  been  joined  and  the 
cause  is  ready  for  trial.  The  state  court  may  then  proceed  to  enter 
judgment  and  decree,  and  order  the  sale  of  the  property.  Getz  et  al.  v. 
First  Nat.  Bank,  10  Fed.  Cas.  273. 

It  seems  that  a  court  of  bankruptcy  will  allow  a  creditor  to  sue  the 
bankrupt  in  a  state  court  where  his  rights  might  be  lost  if  a  suit  were 
not  commenced  forthwith.  On  such  an  application,  the  court  of  bank- 
ruptcy will  not  inquire  whether  the  debt  is  one  from  which  the  bank- 
rupt would  be  relieved  by  his  discharge.  In  re  Ghirardelli  et  al.,  1  Saw. 
343;  10  Fed.  Cas.  275. 

Upon  the  filing  of  a  petition  in  bankruptcy  all  the  property  of  the  bank- 
rupt is  in  the  custody  of  the  court.  A  mortgagee  who  proceeds  there- 
after to  foreclose  in  a  state  court  is  in  contempt,  and  all  proceedings 
thereunder  are  null  and  void.  Phelps  v.  Sellick,  8  N.  B.  K.  390;  19  Fed. 
Cas.  463. 

A  law  to  establish  a  uniform  system  of  bankruptcies  should  not  be 
construed  to  give  exclusive  jurisdiction  to  state  courts  of  proceedings 
necessary  to  affect  the  purposes  of  the  act,  inasmuch  as  it  is  not  within 
the  power  of  congress  to  compel  such  tribunals  to  entertain  suits  brought 
by  an  assignee  for  the  collection  of  the  assets  of  the  bankrupt.  Goodall 
V.  Tuttle,  3  Biss.  219;  10  Fed.  Cas.  579. 

Proceedings  had  been  commenced  in  a  state  court  for  the  purpose  of 
distributing  the  estate  of  an  insolvent  corporation,  and  a  receiver  had 
been  appointed  therein.  This  was  held  not  to  be  a  ground  for  dismissing 
a  petition  in  involuntary  bankruptcy.  In  re  Green  Pond  B.  Co.,  13  N. 
B.  R.  118;  10  Fed.  Cas.  1178. 

A  debtor  who  liad  been  arrested  on  process  from  a  state  court,  and 
had  been  released  on  a  bond  to  apply  for  the  benefit  of  the  insolvent 
laws  of  the  state,  subsequently  filed  a  petition  in  bankruptcy.  The 
court  of  bankruptcy  refused  to  stay  the  proceedings  in  the  state  court 
before  a  discharge.    In  re  Rank,  Crabbe,  493;  20  Fed.  Cas.  273  (1842). 

A  court  of  bankruptcy  having  secured  jurisdiction  of  an  insolvent 
corporation,  the  assignee  may  maintain  a  suit  in  equity  to  set  aside 
the  transfer  of  the  property  to  a  receiver  appointed  by  a  state  court. 
Piatt  V.  Archer,  9  Blatchf.  559;  19  Fed.  Cas.  822. 

The  district  court  will  maintain  its  jurisdiction  as  against  that  of 
state  courts,  in  matters  arising  under  the  Bankrupt  Act,  when  it  is 
necessary  to  protect  its  officers.  _  Main  et  al.  v.  Glen,  7  Biss.  86;  16  Fed. 
Cas.  503. 

Justice  Field  affirmed  a  decision  of  the  district  court  for  Nevada  to 
the  effect  that  a  court  of  bankruptcy  can  enjoin  the  sale  of  property  by  a 
sheriff  under  a  judgment  obtained  in  a  state  court  before  the  commence- 
ment of  proceedings  in  bankruptcy,  and  can  also  declare  the  judgment 
of  a  state  court  void  if  it  was  an  unlawful  preference  under  the  Bank- 
rupt Act    In  re  Malory,  1  Saw.  88;  16  Fed.  Cas.  549. 

A  landlord  who  evicted  the  bankrupt  by  summary  proceedings  in  the 
State  courts  after  the  commencement  of  proceedings  in  bankruptcy  was 


48  The  Bankeuptcy  Law. 

held  to  be  in  contempt  of  the  court  of  bankruptcy,  as  the  possession  of 
the  bankrupt  after  the  commencement  of  proceedings  was  the  posses- 
sion of  the  court.    In  re  Steadmau,  8  F.  B.  K.  SW;  ?2  Fed.  Cas.  1155. 

A  bank  which  had  been  enjoined  from  foreclosing  a  mortgage  agamst 
the  bankrupt  in  a  state  court,  asked  that  the  injunction  be  modified  so 
that  it  might  proceed  to  the  entry  of  judgment.  The  motion  was  denied 
by  the  court  of  bankruptcy  for  the  reason  that  the  rights  of  the  raort- 
gagee  would  be  fully  protected  when  the  property  was  sold  under  the 
direction  of  the  court.    In  re_  Duryea,  7  N.  B.  R.  495;  8  Fed.  Cas.  131. 

When  an  executor  recovers  money  in  bankruptcy  proceedings  for  the 
estate  of  his  decedent,  the  probate  court,  and  not  the  court  of  bank- 
ruptcy, is  the  proper  tribunal  to  control  its  distribution.  In  re  Major,  2 
Hughes,  215;  16  Fed.  Cas.  526. 

'  JuTisdiction  Generaliy. 

"The  bankruptcy  court  is  the  special  creature  of  statutory  law,  and 
all  of  its  jurisdiction  is  derived  from  the  act  which  creates  it."  Jobbins 
V.  Montague  et  al.,  6  N.  B.  R.  509;  13  Fed.  Cas.  648. 

Article  I,  section  8  of  the  Constitution  gives  congress  plenaiy  power 
over  the  subject  of  bankruptcy,  without  respect  to  the  laws  in  force  in 
England  when  the  Constitution  was  adopted.  Silverman's  Case,  1  Saw. 
410;  22  Fed.  Cas.  135. 

Held,  that  congress  under  the  power  conferred  by  the  Constitution 
over  bankruptcy  has  authority  to  destroy  existing  contracts  and  release 
liens.    In  re  Smith,  8  N.  B.  R.  401;  22  Fed.  Cas.  399. 

The  jurisdiction  of  the  United  States  district  court  to  sell  real  estate  in 
satisfaction  of  liens  is  concurrent  and  not  exclusive.  In  re  Bowie,  1  N. 
B.  R.  628;  3  Fed.  Cas.  1067. 

The  court  obtains  full  and  complete  jurisdiction  for  all  purposes  what- 
soever by  the  petition,  whether  voluntary  or  involuntary,  adjudication, 
and  warrant.    In  re  Archenbrown,  11  N.  B.  R.  149;  1  Fed.  Cas.  1084. 

Judge  Deady  of  the  district  court  of  Oregon  said  of  the  Act  of  1867: 
"  Such  a  statute  is  not  to  be  construed  strictly,  as  if  it  were  an  obscure 
and  special  penal  enactment,  and  this  was  the  sixtecith  and  not  the 
nineteenth  century.  The  act  estu.blishes  a  system,  and  regulates  in  all" 
their  details  the  relative  rights  and  duties  of  debtor  and  creditor.  Such 
an  act  must  be  construed  —  as  indeed  should  all  acts  —  according  to  the 
fair  import  of  its  terms  with  a  view  to  effect  its  objects,  and  to  promote 
justicfe.'  "    In  re  Muller  et  al.,  Deady,  513;  17  Fed.  Cas.  971. 

A  voluntary  bankrupt  under  the  Act  of  1841  applied  to  the  district 
court  of  Missouri,  after  an  adjudication  in  due  form,  for  a  full  discharge 
from  all  his  debts  under  the  provisions  of  said  act.  In  denying  the 
petition,  .Judge  Wells  said:  "The  court  regrets  tliat  an  imperious  sense 
of  duty  compels  it  to  declare  that  the  act  of  congress,  so  far  as  it  under- 
takes to  discharge  a  debtor  from  debts  contracted  before  the  passage 
of  the  act,  without  payment,  nnd  to  discharge  his  future  acquisitions 
of  property  from  liabilities  for  those  debts,  without  the  consent  of  a 


CouKTS  OF  Bankruptcy  —  Jubisdiction.  49 

given  majority  of  his  creditors,  is  unconstitutional."  In  re  Klein,  2  N.  Y. 
Leg.  Obs.  185;  14  Fed.  Cas.  719.  On  appeal  to  tlie  circuit  court,  Justice 
Catron,  reversing  the  district  court,  pointed  out  the  difference  between 
the  English  and  the  American  systems  of  bankruptcy;  showed  that 
voluntary  banliruptcy  was  recognized  by  the  laws  of  the  states  before 
the  adoption  of  the  Constitution;  that  this  practice  was  meant  to  be 
recognized  by  the  constitutional  provision  on  the  subject,  and  thereupon 
decided  that  the  voluntary  features  of  the  Act  of  1841  were  not  uncon- 
stitutional.   Ibid,  1  How.  277,  n.;  14  Fed.  Cas.  716. 

The  question  of  jurisdiction  can  be  raised  at  any  stage  of  an  action, 
and  the  defendant  is  not  barred  by  appearing  and  answering.  Jobbins 
V.  Montague  et  al.,  6  N.  B.  E.  509;  13  Fed.  Cas.  648. 

When  a  petition  discloses  a  want  of  jurisdiction,  the  consent  of  the 
parties  cannot  cure  the  defect,  and  the  court  should  talie  notice  of  the 
point  of  its  own  motion.  Hopliins  v.  Carpenter,  18  N.  B.  E.  339;  12  Fed. 
Cas.  492. 

A  person  not  interested  in  the  bankruptcy  proceedings  may  by  petition 
have  his  rights  in  property  in  custody  of  the  bankrupt  court  determined 
by  that  court.  The  proper  parties  being  made,  such  proceeding  is  plenary, 
and  binds  all  parties.    In  re  Anderson,  23  Fed.  Eep.  482. 

In  the  case  cited  the  supreme  court  considered  without  deciding  whether 
the  jurisdiction  of  the  district  court  as  a  court  of  bankruptcy  over  all 
the  property  of  the  bankrupt  is  exclusive.    Norton  v.  Boyd,  3  How.  426. 

When  all  parties  appear  and  seek  the  determination,  the  court  of  bank- 
ruptcy has  power  to  determine  the  title  of  property  in  dispute  between 
the  assignee  and  others.  So  held  under  section  5063,  E.  S.  Adams  v. 
Collier,  122  U.  S.  382. 

Held,  under  the  Act  of  1867  (§  4970,  E.  S.),  that  the  district  court 
has  jurisdiction  of  a  suit  by  creditors  against  the  assignee  of  a  bank- 
rupt member  of  a  partnership  to  procure  an  adjudication  of  their  debts 
and  their  right  of  priority  as  against  individual  creditors. 

"  The  moment  U.  filed  his  voluntary  petition  to  be  declared  a  bank- 
rupt, all  the  property,  in  possession  or  in  action,  which  he  included  on 
his  inventory  and  schedules  came,  by  the  effect  of  the  bankruptcy  law, 
into  the  prehensory  power  of  the  court  as  fully  as  if  it  was  in  the  actual 
and  visible  presence  of  the  court;  consequently  it  is  under  its  pro- 
tection and  within  its  exclusive  control."  Byrd  v.  Harrold  et  al.,  18  N. 
B.  E.  433;  4  Fed.  Cas.  949. 

The  district  court,  sitting  as  a  court  of  bankruptcy,  is  always  open,  and 
may  vacate  orders  and  decrees  at  any  time  upon  a  proper  showing. 
Boutwell  V.  Allerdice,  2  Hughes,  121;  3  Fed.  Cas.  1020. 

It  was  held  that  section  1  of  the  Act  of  1867  did  not  authorize  the  fore- 
closure of  a  mortgage  on  the  bankrupt's  estate  by  the  summary  juris- 
diction of  the  district  court.  In  re  Casey,  10  Blatchf.  376;  5  Fed.  Cas. 
279. 

Under  the  Act  of  1841  the  court  of  bankruptcy  had  jurisdiction  of  an 
action  by  an  assigree  to  recover  a  balance  due  from  a  consignor  to  the 


50  The  Bankeuptot  Law. 

bankrupt  as  broker  at  the  time  of  the  flUng  of  the  petition  in  bankruptcy. 
Kelly  V.  Smith  et  al.,  1  Blatchf.  290;  14  Fed.  Cas.  271  (1848). 

The  trustees  named  in  a  deed  of  trust  given  to  secure  the  payment  of 
promissory  notes  cannot  sell  the  property  after  an  adjudication  in  bank- 
ruptcy against  the  mortgagor,  except  by  leave  of  the  court  of  bank- 
ruptcy. Dooley  v.  Virginia  M.  &  F.  I.  Co.,  2  Hughes,  847;  7  Fed.  Cas. 
912. 

A  court  of  bankruptcy  may  proceed  summarily  against  the  sureties  on 
a  forthcoming  bond,  notwithstanding  the  assignee  had  previously  brought 
an  action  on  the  bond  resulting  in  a  verdict  for  the  defendant,  which 
was  set  aside  and  a  new  trial  granted.  In  re  Mayo,  4  Hughes,  384;  16 
Fed.    Cas.   1262. 

A  decedent,  by  a  codicil  to  his  will,  named  two  persons  as  executors 
for  the  purpose  only  of  carrying  on  his  business  as  a  banker.  They 
qualified  as  executors  and  conducted  the  business  until  they  were  obliged 
to  suspend.  A  petition  in  bankruptcy  was  filed  against  them.  It  was 
held  that  this  was  not  a  trust  that  could  be  administered  under  the 
Bankrupt  Act  of  1867.  Graves  et  al.  v.  Winter  et  al.,  9  N.  B.  E.  357;  10 
Fed.  Cas.  999. 

The  United  States  district  court  for  the  southern  district  of  New  York 
decided  that  an  assignee  in  bankruptcy  under  the  laws  of  Great  Britain 
could  maintain  an  action  in  that  court  to  collect  assets  of  the  bankrupt 
to  the  same  extent  that  the  bankrupt  himself  could  have  sued  if  no 
bankruptcy  had  taken  place.  Hunt  et  al.  v.  Jackson,  5  Blatchf.  349;  12 
Fed.  Cas.  924. 

Justice  Story  held  that  where  a  petition  had  been  filed  on  the  day 
that  the  Act  of  1841  was  repealed  the  court  could  take  jurisdiction,  and 
maintain  it  to  the  close  of  the  proceedings.  In  re  Richardson  et  al.,  2 
StoiT,  571;  20  Fed.  Cas.  699. 

A  court  of  bankruptcy  cannot  compel  a  bankrupt  after  discharge  to 
execute  papers  necessary  to  the  conveyance  of  his  property.  In  re  Nich- 
ols, 1  Fed.  Rep.  842. 

In  deciding  a  case  that  arose  in  1837,  under  the  Bankrupt  Act  of 
1800,  the  United  States  district  court  for  Pennsylvania  held  that  the 
district  judge  had  power  to  supersede  a  commission  of  bankruptcy  under 
the  act  mentioned  without  the  express  grant  of  such  power;  that  the 
effect  of  such  a  supersedeas  was  to  place  the  bankrupt  and  his  estate 
in  the  same  position  they  would  have  been  in  if  no  proceeding  had  been 
commenced,  and  that  a  supersedeas  will  not  be  revoked  to  allow  a  peti- 
tioner to  prove  debts  many  years  after  it  was  granted,  except  on  a  strong 
showing  to  rebut  the  presumption  that  the  debts  had  been  paid.  In  re 
Morris,  Crabbe,  70;  17  Fed.  Rep.  785  (1837). 

By  stipulation,  certain  mortgaged  property  of  the  bankrupt  was  sold 
by  the  marshal,  and  the  proceeds  paid  into  court  The  court  held  that 
by  this  agreement,  the  assignee  on  one  hand,  and  the  mortgagee  on  the 
other,  submitted  their  matters  in  dispute  to  the  district  court  upon  a 
petition  to  be  filed  and  waived  their  respective  rights  to  institute  pro- 


CouETS  OF  Bankruptcy  —  Jurisdiction.  51 

ceedings  In  equity  or  at  law,  either  in  the  district  or  circuit  court.  In  re 
Masterson,  4  N.  B.  K.  553;  16  Fed.  Gas.  1084. 

Where  a  forthcoming  bond  was  given  In  bankruptcy  proceedings,  It 
was  held  that  the  district  court  might  order  the  goods  or  the  value  thereof 
to  be  delivered  to  the  court  by  the  obligors.  Kosebaum  v.  Garnett,  3 
Hughes,  662;  20  Fed.  Cas.  1193. 

An  adjudication  of  bankruptcy  under  the  Act  of  1867  is  conclusive 
as  to  the  insolvency  of  the  petitioner  and  that  he  owed  more  than  $300, 
but  not  that  he  is  within  the  jurisdiction  of  the  court  othervrise.  In  re 
Goodfellow,  1  Low.  510;  11  Fed.  Cas.  594. 

It  is  competent  for  a  court  of  bankruptcy  to  order  the  seizure  of  tlie 
bankrupt's  property  while  In  the  possession  of  another  claiming  to  own 
the  same.    Felbelman  v.  Packard,  109  U.  S.  421. 

Held,  under  the  Act  of  1841,  that  there  Is  no  distinction  in  a  court  of 
bankruptcy  between  an  order  of  the  judge  and  an  order  of  the  court, 
the  act  of  the  judge  being  the  act  of  the  court.  In  re  Mott,  6  Fed.  Rep. 
685. 

In  composition  proceedings,  before  adjudication,  a  court  of  bankruptcy 
has  no  jurisdiction  to  determine  questions  of  title  between  the  alleged 
bankrupt  and  persons  who  were  not  parties  to  the  proceedings.  In  re 
Waitzf elder  et  al.,  18  N.  B.  R.  260;  28  Fed.  Oas.  1343. 

It  appeared  from  the  books  of  the  bankrupts  that  they  ought  to  have 
turned  over  $50,000  worth  of  property,  and  they  did  in  fact  turn  over 
$18,000  worth.  Upon  an  examination,  the  district  court  found  that  they 
had  concealed  $7,700,  and  ordered  them  to  pay  that  sum  to  the  assignee. 
On  review,  the  circuit  court  affirmed  the  order.  In  re  Peltasohn,  4  Dill. 
107;  19  Fed.  Cas.  126. 

On  the  question  of  the  authority  of  the  district  court  as  a  court  of 
bankruptcy  to  sell  the  bankrupt's  real  estate  free  from  incumbrances, 
the  cou-t,  construing  the  Act  of  1867,  used  this  language:  "  The  power 
Is  given  by  the  first  section  of  the  Bankrupt  Act  by  which  the  jurisdic- 
tion of  the  court  is  extended  '  to  the  ascertainment  and  liquidation  of 
the  liens  and  other  specific  claims '  In  the  bankrupt's  assets  '  to  the  ad- 
justment o*"  the  priorities  and  confiicting  interest  of  all  parties,'  and  '  to 
the  marshaling  and  disposition  of  the  different  funds  and  assets  so  as 
to  secure  the  rights  of  all  parties  to  the  due  distribution  of  the  assets 
among  all  the  creditors.'  Under  the  Bankrupt  Act  of  1841,  less  com- 
prehensive and  explicit  provisions  were  held  by  the  supreme  court  to 
confer  this  power."     In  re  Rhodes,  20  Fed.  Cas.  652. 

The  jurisdiction  of  a  court  of  bankruptcy  is  subject  to  collateral  attack 
in  another  court.    Adams  et  al.  v.  Tarrell,  4  Fed.  Rep.  796. 

The  court  refused  to  set  aside  an  adjudication  on  the  ground  that  the 
petition  showed  a  want  of  jurisdiction,  and  held  that  the  point  should 
be  raised  on  the  application  for  a  discharge.  In  re  Penn  et  al.,  4  Ben. 
99;  19  Fed.  Cas,  151. 

[See  notes  to  §§  9, 11, 18  and  23.] 


53  The  Bankeuptcy  Law. 


CHAPTEK  III. 

BANKEtrPTS. 

§  3.  Acts  of  Bankruptcy. —  (a.)  Acts  of  bankruptcy  by  a  person 
shall  consist  of  his  having: 

(1.)  Conveyed,  transferred,  concealed,  or  removed,  or  permitted  to 
he  concealed  or  removed,  any  part  of  his  property  with  intent  to  hinder, 
delay,  or  defraud  his  creditors,  or  any  of  them;  or 

(3.)  Transferred,  while  insolvent,*  any  portion  of  his  property  to 
one  or  more  of  his  creditors  with  intent  to  prefer  such  creditors  over 
his  other  creditors;  or 

(3.)  Suffered  or  permitted,  while  insolvent,  any  creditor  to  obtain  a 
preference  through  legal  proceedings,  and  not  having  at  least  five 
days  before  a  sale  or  final  disposition  of  any  property  affected  by  such 
preference  vacated  or  discharged  such  preference;  or 

(4.)  Made  a  general  assignment  for  the  benefit  of  his  creditors;  or 

(5.)  Admitted  in  writing  his  inability  to  pay  his  debts  and  his 
willingness  to  be  adjudged  a  bankrupt  on  that  ground. 

(b.)  A  petition  may  be  filed  against  a  person  whp  is  insolvent  and 
who  has  conunitted  an  act  of  bankruptcy  within  four  months  after  the 
commission  of  such  act.  Such  time  shall  not  expire  until  four  months 
after:  The  date  of  the  recording  or  registering  of  the  transfer  or  assign- 
ment when  the  act  consists  in  having  made  a  transfer  of  any  of  his 
property  with  intent  to  hinder,  delay,  or  defraud  his  creditors  or  for 
the  purpose  of  giving  a  preference  as  hereinbefore  provided,  or  a  general 
assignment  for  the  benefit  of  his  creditors,  if  by  law  such  recording  or 
registering  is  required  or  permitted,  or,  if  it  is  not,  from  the  date  when 
the  beneficiary  takes  notorious,  exclusive,  or  continuous  possession  of 
the  property  unless  the  petitioning  creditors  have  received  actual  notice 
of  such  transfer  or  assignment. 

(c.)  It  shall  be  a  complete  defense  to  any  proceedings  in  bankruptcy 
instituted  under  the  first  subdivision  of  this  section  to  allege  and  prove 
that  the  party  proceeded  against  was  not  insolvent  as  defined  in  this 
Act  at  the  time  of  the  filing  the  petition  against  him,  and  if  solvency 
at  such  date  is  proved  by  the  alleged  bankrupt  the  proceedings  shall  be 
dismissed,  and  under  said  subdivision  one  the  burden  of  proving 
solvency  shall  be  on  the  alleged  bankrupt. 

*  The  word  "insolvent"  as  used  in  this  Act  is  defined  in  section  1,  clause  15.  This  definition 
destroys  the  pertinence  of  a  large  number  of  decisions  to  the  effect  that  insolvency  consists  of 
a  present  Inability  to  pay  one's  debts  as  they  mature  to  the  ordinary  course  of  business. 


Bankrupts.  53 

(d.)  Whenever  a  person  against  whom  a  petition  has  been  filed  as 
hereinbefore  provided  under  the  second  and  third  subdivisions  of  this 
section  takes  issue  with  and  denies  the  allegation  of  his  insolvency,  it 
shall  be  his  duty  to  appear  in  court  on  the  hearing,  with  his  books, 
papers,  and  accounts,  and  submit  to  an  examination,  and  give  testi- 
mony as  to  all  matters  tending  to  establish  solvency  or  insolvency,  and 
in  case  of  his  failure  to  so  attend  and  submit  to  examination  the  burden 
of  proving  his  solvency  shall  rest  upon  him. 

(e.)  Whenever  a  petition  is  filed  by  any  person  for  the  purpose  of 
having  another  adjudged  a  bankrupt,  and  an  application  is  made  to 
take  charge  of  and  hold  the  property  of  the  alleged  bankrupt,  or  any 
part  of  the  same,  prior  to  the  adjudication  and  pending  a  hearing  on 
the  petition,  the  petitioner  or  applicant  shall  file  in  the  same  court  a 
bond  with  at  least  two  good  and  sufficient  sureties  who  shall  reside 
within  the  jurisdiction  of  said  court,  to  be  approved  by  the  court  or  a 
judge  thereof,  in  such  sum  as  the  court  shall  direct,  conditioned  for  the 
payment,  in  case  such  petition  is  dismissed,  to  the  respondent,  his  or 
her  personal  representatives,  all  costs,  expenses,  and  damages  occasioned 
by  such  seizure,  taldng,  and  detention  of  the  property  of  the  alleged 
bankrupt. 

If  such  petition  be  dismissed  by  the  court  or  withdrawn  by  the 
petitioner,  the  respondent  or  respondents  shall  be  allowed  all  costs, 
counsel  fees,  expenses,  and  damages  occasioned  by  such  seizure,  taking, 
or  detention  of  such  property.  Counsel  fees,  costs,  expenses,  and  dam- 
ages shall  be  fixed  and  allowed  by  the  court,  and  paid  by  the  obligors 
in  such  bond. 

Fraudtilent  Payments  and  Transfers. 

A  payment  which  was  otherwise  an  act  of  bankruptcy  is  none  the  less 
so  because  it  was  made  upon  a  fiduciary  debt.  In  re  Dibblee  et  al.,  3  Ben. 
283;  7  Fed.   Cas.   651. 

The  payment  by  an  insurance  company  to  insurees  of  unearned 
premiums  is  not  such  a  preference  as  to  support  a  petition  for  involuntary 
bankruptcy.  Knickerbocker  Ins.  Co.  v.  Comstock,  9  N.  B.  H.  484;  14 
Fed.  Cas.  751. 

A  bank  certified  a  check  on  the  promise  of  the  drawer  that  he  would 
make  his  account  good  during  the  day.  It  was  held  that  this  created 
simply  the  relation  of  debtor  and  creditor,  and  that  the  payment  oi  the 
debt  after  insolvency  was  an  act  of  bankruptcy.  Payne  et  al.  v.  Solomon, 
14  N.  B.  R.  162;  19  Fed.  Cas.  12. 

An  insolvent  corporation  made  a  payment  of  rent  to  preserve  a  lease 
of  great  value.  The  payment  was  held  to  be  an  act  of  bankruptcy  under 
the  Act  of  1867,  notwithstanding  it  was  made  in  good  faith,  and  was 


54  The  Bankkuptct  Law. 

for  the  best  interests  of  the  company.     In  re  Merchants'   Ins.   Co.,  3 
Biss.  162;  17  Fed.  Cas.  41. 

Where  the  petition  charged  a  payment  to  one  creditor  by  an  insolvent 
debtor  with  intent  to  give  a  preference,  a  mere  denial  of  the  intent  is 
not  sufficient.  The  debtor  must  show  with  what  intent  he  made  such 
payment.  Failing'  in  that,  judgment  may  be  given  against  him  as  upon 
a  failure  to  answer.    Silverman's  Case,  1  Saw.  410;  22  Fed.  Cas.  135. 

An  insolvent  debtor  being  indebted  to  a  railroad  company  for  freight, 
paid  it  in  full  by  furnishing  lumber.  This  was  held  to  be  a  preference 
and  an  act  of  bankruptcy.  Farrin  v.  Crawford  et  al.,  2  N.  B.  K.  602; 
8  Fed.   Cas.  1084. 

An  insolvent  debtor  who  gives  a  preference  to  a  creditor  commits  an 
act  of  bankruptcy,  however  innocent  the  preferred  creditor,  or  the  per- 
son to  whom  the  transfer  or  payment  is  made,  may  be.  In  re  Drummond, 
1  N.  B.  E.  231;  7  Fed.  Cas.  1108. 

Payments  for  life  insurance  by  an  insolvent  debtor  were  held  to  be 
unlawful;  otherwise,  as  to  insurance  upon  a  house  and  furniture  in  pur- 
suance of  covenants  in  a  lease.  In  re  Kosenfeld,  2  N.  B.  R.  116;  20  Fed. 
Cas.  1198. 

A  conveyance  that  is  made  with  the  Intent  to  prefer  one  creditor,  but 
in  operation  would  delay  all  creditors,  is  an  act  of  bankruptcy.  In  re 
Williams  et  al.,  1  Low.  406;  29  Fed.  Cas.  1322. 

A  transfer  by  one  member  of  a  firm  of  his  Individual  property  with 
intent  to  prefer  a  firm  creditor,  or  to  defraud  firm  creditors,  will  not 
support  involuntary  proceedings  against  the  firm.  In  re  Williams  et  al., 
1  Low.  406;  29  Fed.  Cas.  1322. 

It  was  held  not  to  be  an  act  of  bankruptcy  for  a  debtor  to  turn  over 
securities  in  fulfillment  of  a  prior  agreement  that  the  proceeds  of  all 
overdrafts  should  be  the  property  of  the  bank;  but  the  law  was  held 
to  be  otherwise  in  the  case  of  a  mere  promise  to  deliver  such  securities 
as  he  snould  purchase  with  overdrafts.  Payne  et  al.  v.  Solomon,  14  N. 
B.  R.  162;  19  Fed.  Cas.  12. 

A  conveyance  that  was  fraudulent  at  common  law  was  an  act  of 
bankruptcy  under  the  Law  of  1841.  Gassett  et  al.  v.  Morse  et  al.,  21 
Vt.  627;  10  Fed.  Cas.  79. 

A  debtor  settled  with  all  of  his  creditors  except  one,  whom  he  secured 
by  a  transfer  of  property  on  a  promise  that  he  should  have  a  liberal 
extension  of  time  to  pay.  Upon  a  petition  filed  by  the  debtor  so  secureu, 
the  transaction  was  held  to  be  an  act  of  bankruptcy.  Ecfort  et  al.  v. 
Greely,  6  N.  B.  R.  433;  8  Fed.  Cas.  279. 

A  trader  gave  his  father-in-law  a  chattel  mortgage  of  his  stock  to  in- 
demnify him  as  surety  on  a  note.  The  mortgagor  retained  possession 
of  the  goods,  and  continued  to  sell  them  in  the  usual  way.  Two  months 
later,  the  mortgagee  took  possession  of  the  goods  under  the  mortgage. 
It  was  held  that  the  mortgage  and  the  seizure  of  the  goods  wore  both 
acts  of  bankruptcy.    In  re  Foster,  18  N.  B.  R.  64;  9  Fed.  Cas.  524. 


Bankrupts.  55 

The  conveyance  by  a  merchant  of  the  whole  of  his  property,  not- 
withstanding it  Is  made  for  the  equal  benefit  of  all  of  his  creditors,  is  an 
act  of  bankruptcy  per  se;  but  the  rule  is  otherwise  in  case  of  a  conveyance 
of  a  part  of  his  property  to  a  particular  creditor,  unless  made  in  con- 
templation of  banljruptcy,  or  to  give  the  creditor  a  preference,  Jones 
V.  Sleeper,  2  N.  Y.  Leg.  Obs.  131;  13  Fed.  Cas.  1030  (1843). 

While  negotiations  were  in  progress  for  an  extension,  the  debtors  in- 
dorsed a  bill  of  lading  to  a  creditor  for  the  equal  benefit  of  all  creditors, 
and  for  the  purpose  of  protecting  the  property  from  attachment.  This 
Avas  held  not  to  be  an  act  of  bankruptcy.  Ex  parte  Potts  et  al.,  Crabbe, 
469;  19  Fed.  C'as.  1199  (1&12). 

A  firm  operated  a  sugar  plantation,  which  the  members  of  the  firm 
owned  as  joint  tenants.  For  the  pui-pose  of  defrauding  the  creditors  of 
the  partnership,  they  executed  a  mortgage  to  a  third  person  without 
consideration.  This  was  held  to  be  an  act  of  bankruptcy  by  the  firm. 
Lastrapes  et  al.  v.  Blanc  et  al.,  3  Woods.  134;  14  Fed.  Cas.  1164. 

It  is  not  an  act  of  bankruptcy  for  a  solvent  debtor  who  did  not  con- 
template bankruptcy,  to  give  a  mortgage  on  personal  property  to  secure 
a  pre-existing  debt,  notwithstanding  the  mortgage  was  made  with  intent 
to  give  a  preference.    In  re  Dunham  et  al.,  2  Ben.  488;  8  ^ed.  Cas.  33. 

A  conveyance  of  property  for  advances  made  about  the  same  time  was 
not  an  act  of  bankruptcy  under  tlie  Act  of  1867;  otherwise  wliere  it  was 
made  some  time  before  the  advances.  In  re  Pierson,  10  N.  B.  K.  107;  19 
Fed.  Cas.  661. 

On  the  question  whether  a  chattel  mortgage  given  partly  for  an  exist- 
ing debt  and  partly  for  advances  to  be  made  is  an  act  of  bankruptcy, 
Judge  Lowell  quoted,  with  approbation,  the  following  from  Eobison  on 
Bankruptcy:  "  The  weight  of  authority  would  seem  to  be  in  favor  of  a 
transaction  of  this  sort  not  being  an  act  of  bankruptcy  where  the  advance 
is  made  liona  fide  to  enable  the  debtor  to  meet  his  engagements  or  carry 
on  his  business.  Such  an  act  may  be,  and  in  fact  often  is,  the  wisest 
course  a  trader  can  take  to  promote  tlie  interest  of  his  creditors."  Ex 
parte  Ames;  In  re  Macay  et  al.,  1  Low.  561;  1  Fed.  Cas.  746. 

Of  a  firm  of  four  partners,  one  gave  a  fraudulent  preference,  and 
another  assented  to  the  transaction.  The  others  dissented  as  soon  as 
they  heard  of  it.  The  court  held  that  this  was  an  act  of  bankruptcy  on 
the  part  of  the  partner  who  made  the  assignment,  and  the  one  who 
consented  to  it;  that  the  deed  was  void;  that  the  partners  who  had  not 
consented  were  not  personally  affected,  and  had  not  committed  an  act 
of  bankruptcy;  but  that  the  firm  and  the  partners,  being  insolvent,  must 
be  declared  bankrupts  under  section  14  of  the  Act  of  1841.  Ex  parte 
Galbraith,  1  N.  Y.  Leg.  Obs.  5;  9  Fed.  Cas.  1077  (1842). 

While  the  debtors  were  solvent  they  agreed  to  give  collateral  security 
for  advances  made  subsequently,  and  after  they  became  insolvent,  they 
transferred  the  collateral.  The  court  held  that  this  was  not  an  act  of 
bankruptcy.    Ex  parte  Potts  et  al.,  Crabbe,  469;  19  Fed.  Cas.  1190  (1842). 

A  mortgage  of  the  present  and  future  stock  of  a  merchant  to  secure 


56  The  Bankhuptcy  Law. 

promised  advances  is  prima  facie  fraudulent,  and  an  act  of  bankruptcy 
even  though  It  be  a  valid  security.  In  re  Holland,  2  Hask.  90;  12  Fed. 
Cas.  335. 

The  fact  that  a  debtor  sold  his  property  for  the  purpose  of  going  into 
a  new  bu.siness,  the  sale  being  bona  fide,  did  not  constitute  an  act  of  bank- 
ruptcy under  the  Law  of  18G7,  though  he  kept  the  proceeds  in  money, 
and  not  in  tangible  property  that  could  be  seized  on  process.  Fox  v. 
Eckstein,  4  N.  B.  R.  373;  9  led.  Cas.  626. 

In  involuntary  proceedings  it  appeared  that  while  the  alleged  bank- 
rupts were  negotiating  for  an  extension  of  their  paper,  they  ordered  a 
piano  for  a  customer  who  refused  to  receive  it,  and  thereupon  they 
returned  it  to  the  vendors.  It  was  held  that  this  was  not  a  preference, 
or  an  act  of  bankruptcy.  Done  v.  Compton  et  al.,  2  N.  B.  E.  607;  7  Fed. 
Cas.  776. 

It  is  not  an  act  of  bankruptcy  for  an  insolvent  debtor  to  continue  the 
sale  of  his  stock  at  retail,  and  endeavor  to  make  a  settlement  with  his 
creditors.    In  re  Hunger  et  al.,  4  N.  B.  K.  295;  17  Fed.  Cas.  986. 

Referring  to  section  44  of  the  Act  of  1867,  Judge  Lowell  said:  "The 
statute  seems  to  be  directed  against  frauds  upon  the  creditors  as  a  body, 
and  It  does  not  refer  the  intent  to  the  time  of  the  purchase,  but  to  that 
of  the  disposal  of  the  goods  out  of  the  usual  course  of  trade,  and  at  that 
time  the  fraud  could  not  injure  one  creditor  more  than  the  rest."  U.  S. 
V.  Olark,  1  Low.  402;  25  Fed.  Cas.  446. 

Where  one  partner  retires  from  a  firm  and  transfers  his  assets  and  lia- 
bilities to  another,  the  transaction  is  not  necessarily  an  act  of  bankruptcy 
on  the  part  of  the  partnership,  but  the  question  to  be  determined  is 
whether  it  was  intended  to  give  a  preference  to  the  individual  over  the 
firm  creditors,  or  to  place  them  on  an  equality,  or  in  any  way  to  operate 
as  a  fraud.    Bx  parte  Shouse,  Crabbe,  482;  22  Fed.  Cas.  (1842). 

Debtors,  who  were  insolvent  at  the  time,  gave  a  chattel  mortgage  on 
tools  and  machinery  to  certain  creditors.  It  was  held  that  they  had 
committed  an  act  of  bankruptcy  within  the  meaning  of  section  39  of  the 
Act  of  1867.    In  re  Rogers  et  al.,  2  N.  B.  R.  397;  20  Fed.  Cas.  1105. 

A  loan  of  money  in  good  faith  on  a  mortgage  out  of  which  an  insolvent 
debtor  prefers  certain  creditors  will  not  be  considered  as  in  fraud  of 
the  bankrupt  law  when  it  does  not  appear  that  the  mortgagee  was 
aware  of  such  insolvency,  or  that  an  illegal  preference  was  intended. 
In  re  Packard,  1  Low.  523;  18  Fed.  Cas.  957  (1871). 

The  execution  of  a  chattel  mortgage  on  the  debtor's  stock  of  goods  with 
Intent  to  hinder,  delay,  and  defraud  his  creditors  was  held  to  be  an  act 
of  bankruptcy  under  the  Act  of  1867.  In  re  McKibben,  12  N.  B.  R.  97; 
16  Fed.  Cas.  210. 

It  does  not  constitute  an  act  of  bankruptcy  for  one  member  of  an  in- 
solvent firm  to  transfer  property  of  the  firm  to  another  member.  In  re 
Munn,  3  Biss.  442;  17  Fed.  Cas.  989. 

The  taking  of  security  for  a  present  loan  to  a  debtor  doing  business 
is  not  in  violation  of  the  letter  or  spirit  of  the  Bankrupt  Act.  Wads- 
worth  V.  Tyler,  2  N.  B.  R.  316;  28  Fed.  Cas.  1320. 


Bankeupts.  57 

The  term  "  fraudulent  conveyance  "  may  apply  to  a  legal  iraud,  and 
not  one  Involving  moral  turpituue.  Wakeman  v.  Hoyt,  5  Law  Rep.  309; 
28  Fed.  Cas.  1350. 

It  was  held  not  to  be  an  act  of  bankruptcy  for  a  debtor  to  sell  his  stock 
of  goods  when  there  was  no  proof  that  he  was  insolvent  at  the  time, 
and  the  purchaser  acted  in  good  faith.  In  re  Valliquette,  4  N.  B.  K.  3o7; 
28  Fed.  Cas.  930. 

The  intent  is  a  question  of  fact,  but  if  a  note  and  mortgage  executed 
by  the  bankrupt  are  fictitious,  the  only  reasonable  inference  in  the  prem- 
ises is  that  it  was  given  with  intent  to  hinder  and  delay  creditors,  if  not 
to  defraud  them.    In  re  Ryan,  5  Leg.  Gaz.  263;  21  Fed.  Oas.  105. 

A  sale  by  one  insolvent  partner  to  another  of  his  interest  in  the  firm 
for  a  sufficient  consideration  is  not  a  fraud  on  creditors  of  the  firm; 
the  assets  so  transferred  being  still  liable  to  the  debts  of  the  partnership. 
Russell  V.  McCord,  17  N.  B.  R.  508;  21  Fed.  Cas.  51  (1878). 

The  act  charged  in  the  petition  was  a  conveyance  by  a  railroad  corpora- 
tion of  its  property  in  trust  to  secure  bonds,  the  proceeds  of  which  were 
to  be  applied  to  pay  all  its  unsecured  debts.  Creditors  were  allowed  to 
take  the  new  bonds,  or  the  proceeds  thereof,  at  their  option.  The  con- 
veyance was  held  not  to  be  an  act  of  bankruptcy.  In  re  Union  Pac.  Co., 
10  N.  B.  R.  178;  24  Fed.  Cas.  624. 

In  the  case  cited.  Judge  Lowell  expressed  the  opinion,  though  he  did 
not  expressly  decide,  that  it  would  not  be  an  act  of  bankruptcy  for  an 
individual  debtor  to  mortgage  his  property  for  the  payment  of  his  debts 
ratably.    Ibid. 

Prior  to  the  commencement  of  proceedings,  the  bankrupt  had  sold  and 
received  the  purchase  price  of  certain  real  and  personal  property.  Held, 
that  a  conveyance  made  after  the  commencement  of  proceedings  was 
valid,  and  not  a  fraud  upon  the  Bankrupt  Act.  Steadman  v.  Caswell  et 
al.,  2  Hask.  375;  22  Fed.  Cas.  1160. 

A  transfer  of  partnership  property  after  Insolvency  to  pay  a  debt 
common  to  all  the  partners,  and  which  was  not  a  firm  debt,  was  held 
to  be  an  act  of  bankruptcy  under  the  Law  of  1867.  In  re  Matot  et  al., 
16  N.  B.   R.  485;   16  Fed.   Cas.   1109. 

Judge  Brown,  of  the  district  court  of  Michigan,  said:  "The  law  is  as 
well  settled  in  bankruptcy  as  in  equity  that  the  party  who  has  become 
a  party  to,  assented,  or  taken  benefit  from  a  fraudulent  conveyance  is 
estopped  thereby  to  claim  the  same  as  a  fraud  or  an  act  of  bankruptcy." 
In  re  Williams,  14  N.  B.  R.  132;  29  Fed.  Cas.  1827. 

It  is  an  evidence  of  fraud  for  an  insolvent  debtor  to  dispose  of  prop- 
erty otherwise  than  in  the  ordinary  course  of  business.  Webb  v.  Sachs, 
4  Saw.  158;  29  Fed.  Cas.  523. 

An  assignment  for  the  benefit  of  creditors  was  signed  by  three  of  five 
partners  personally,  and  in  the  firm  name  by  one  partner  as  attorney  in 
fact  without,  as  It  was  alleged,  any  power  of  attorney  from  the  firm 
authorizing  him  so  to  do.    The  assignment  having  been  set  up  in  a  petition 


58  The  Bankbuptcy  Law. 

by  creditors  in  involuntary  bankruptcy,  certain  other  creditors  asked 
for  leave  to  contest  tlie  adjudication  on  the  ground  tliat  the  assignment 
was  void.  The  motion  was  denied  for  the  reason  that  it  did  not  show 
that  the  other  partners  did  not  consent  to  the  assignment.  In  re  Law- 
rence et  al.,  10  Ben.  4;  15  Fed.  Cas.  21. 

The  Act  of  1867  did  not  prevent  an  insolvent  debtor  from  selling  or 
exchanging  his  property  before  the  commencement  of  proceedings  against 
him  if  there  was  no  intent  to  hinder,  defraud  or  delay  creditors.  Cook 
V.  Tullis,  18  Wall.  332. 

"  The  act  of  congress  was  designed  to  secure  an  equal  distribution  of 
the  property  of  an  insolvent  debtor  among  his  creditors,  and  any  trans- 
fer made  with  a  view  to  secure  the  property  or  any  part  of  it  to  one 
and  thus  prevent  such  equal  distribution  is  a  transfer  in  fraud  of  the 
act."    Toof  V.  Martin,  13  Wall.  40. 

Upon  the  dissolution  of  a  partnership.  Its  entire  effects  were  trans- 
ferred to  the  only  solvent  partner,  who  sold  them  in  gross.  This  was 
held  not  to  be  an  act  of  bankruptcy.  In  re  Weaver,  9  N.  B.  R.  132;  29 
Fed.    Cas.   485. 

An  insurance  company,  after  paying  all  its  current  expenses,  made  an 
assignment  under  the  laws  of  Ohio  of  all  its  assets  for  the  equal  benefit 
of  its  creditors.  Judge  Sherman  held,  under  the  Act  of  1867,  that  this 
was  not  an  act  of  bankruptcy.  Smith  et  al.  v.  Teutonia  Ins.  Co.,  4  Chi. 
Leg.  News,  130;  22  Fed.  Cas.   685. 

A  transfer  by  one  member  of  a  firm  of  his  personal  property  will  sup- 
port proceedings  against  him  only,  notwithstanding  it  was  made  to 
hinder,  delay  or  defraud  firm  creditors,  or  to  give  a  preference  to  one 
of  them.    In  re  Redmond  et  al.,  9  N.  B.  R.  408;  20  Fed.  Cas.  400. 

An  assignment  of  all  the  property  of  a  debtor  for  the  equal  benefit 
of  creditors  was  held  to  be  an  act  of  bankruptcy  under  the  Act  of  1867. 
In  re  Randall  et  al.,  1  Deady,  557;  20  Fed.  Cas.  222. 

A  voluntary  assignment  by  a  debtor  under  state  laws,  though  made 
in  good  faith  and  embracing  all  of  his  property,  and  made  for  the  equal 
benefit  of  all  his  creditors,  was  held  to  be  an  act  of  bankruptcy  under 
the  Act  of  1867.    Cragin  v.  Thompson,  2  Dill.  513;  6  Fed.  Cas.   (08. 

Ten  months  before  filing  his  petition  in  bankruptcy,  the  bankrupt,  being 
then  unable  to  pay  his  debts,  and  having  been  sued  for  the  same,  made 
a  general  assignment  for  the  equal  benefit  of  all  his  creditors.  On  ex- 
amination, he  swore  that  he  had  made  the  assignment  in  good  faith  and 
not  in  contemplation  of  bankruptcy;  but  the  court  held  that  the  effect 
of  the  assignment  being  to  hinder  and  delay  his  creditors,  its  execution 
was  an  act  of  bankruptcy,  and  a  discharge  was  refused.  In  re  Gold- 
schmidt,   3   Ben.   379;   10  Fed.   Cas.   564. 

A  chattel  mortgage  given  to  secure  an  existing  Indebtedness,  with  in- 
tent to  hinder  and  delay  other  creditors,  was  held  to  constitute  an  act 
of  bankruptcy  within  the  Law  of  1867.  In  re  Cowles  1  N  B  R  280- 
6  Fed.  Cas.  672. 


Bankrupts.  59 

"  Preferences  throug^h  Legal  Proceedings." 

A  warrant  of  attorney  to  confess  judgment  in  contemplation  of  bank- 
ruptcy is  not  an  act  of  banlsruptcy  unless  the  debtor  procures  judgment 
to  be  entered  and  an  execution  to  be  issued.  Barnes  v.  Bellington,  1 
Wash.  C.  C.  29;  2  Fed.  Cas.  858  (1803). 

It  Is  not  an  act  of  banliruptcy  to  give  a  warrant  of  attorney  for  a 
consideration  of  equal  value  to  the  amount  of  the  judgment  confessed. 
In  re  Blabon  et  al.  v.  Hunc  et  al.,  2  N.  J.  L.  J.  179;  3  Fed.  Cas.  493. 

It  was  decided  under  the  Act  of  1841  that  the  giving  of  a  power  of  at- 
torney is  not  an  act  of  banliruptcy  unless  done  fraudulently,  and  that  it 
was  not  fraudulent  if  given  to  a  bona  flde  creditor,  unless  the  debtor 
at  the  time  contemplated  an  act  of  bankruptcy,  or  an  application  by 
himself  to  be  declared  a  bankrupt.  Buckingham  v.  McLean,  13  How. 
151. 

A  warrant  of  attorney  given  to  enable  the  debtor  to  continue  his  busi- 
ness, and  without  intent  to  defeat  the  operation  of  the  Bankrupt  Act, 
will  not  support  a  petition  for  an  adjudication  in  bankruptcy.  In  re 
Leeds,  1  N.  B.  R.  521;  15  Fed. -Gas.  239. 

A  confession  of  judgment  for  a  present  consideration  followed  by  the 
issuance  of  an  execution  is  not  an  act  of  bankruptcy  unless  the  creditor 
has  the  assistance  of  the  debtor.    Clark  v.  Iselin,  21  Wall.  360. 

To  avoid  "  suffering  his  property  to  be  taken  on  legal  process,"  under 
the  Act  of  1867,  it  was  necessary  for  a  debtor  when  he  was  sued  to 
defend  the  action,  or  file  his  petition  in  bankruptcy.  Fitch  et  al.  v. 
McGie,  2  Biss.  163;  Q  Fed.  Cas.  180. 

There  must  be  active  co-operation  on  the  part  of  the  debtor  in  aiding 
another  to  obtain  a  judgment  and  levy  an  execution  to  make  it  an  act 
of  bankruptcy.  Jones  v.  Sleeper,  2  N.  Y.  Leg.  Obs.  131;  13  Fed.  Cas. 
1030    (1843). 

Mere  inactivity  of  a  debtor  in  permitting  judgment  on  an  honest  debt 
to  be  recovered,  without  having  encouraged  the  suit,  is  not  an  act  of 
bankruptcy.  Order  of  adjudication  reversed.  Wright  v.  Filley,  1  Dill. 
171;  4  N.  B.  R.  610;  30  Fed.  Cas.  672  (1870). 

It  was  held  to  be  an  act  of  bankruptcy  for  an  insolvent  firm  to  permit 
one  of  the  partners  to  secure  a  judgment  by  default,  though  the  firm  was 
lawfully  indebted  to  him.  In  re  Black  et  al.,  2  Ben.  195;  3  Fed.  Cas. 
495.. 

A.  had  secured  a  judgment  in  a  state  court  against  J.,  after  which  the 
latter  conveyed  all  his  real  estate,  of  a  value  greater  than  the  debt,  to 
his  sons.  The  court  dismissed  the  petition  of  A.  for  an  adjudication  of 
bankruptcy  against  J.,  and  held  that  A.'s  remedy  was  to  have  the  con- 
veyance set  aside  in  a  court  of  equity.  Avery  v.  Johann,  3  N.  B.  R.  144; 
2  Fed.  Cas.  251. 

It  was  an  act  of  bankruptcy  under  the  Act  of  1841  for  a  trader  to  pro- 
cure himself  to  be  arrested,  or  his  goods  to  be  attached.  Wakeman  v. 
Hoyt,  5  Law  Rep.  309;  28  Fed.  Cas.  1350  (1842). 


60  The  Bankeuptct  Law. 

Under  the  Act  of  1841  it  was  held  not  to  be  an  act  of  bankruptcy  to  per- 
mit a  judgment  to  be  entered  in  favor  of  a  particular  creditor,  and  an 
execution  to  be  issued  thereon,  unless  it  was  shown  that  the  debtor  was 
Insolvent  at  the  time.  In  re  Bonnet,  1  N.  Y.  Leg.  Obs.  310;  3  Fed.  Cas. 
854  (1843). 

Where  the  execution  on  a  fictitious  judgment  rendered  before  the  pas- 
sage of  the  bankrupt  law  was,  after  the  passage  of  the  Act,  levied  on 
property  of  the  alleged  debtor,  it  was  held  that  the  debtor  by  failing 
to  take  steps  to  have  the  judgment  set  aside,  was  guilty,  being  insolvent, 
of  suffering  his  property  to  be  taken  on  legal  process  with  intent  to 
defeat  or  delay  the  operation  of  the  Act,  and  had  thus  committed  an 
act  of  bankruptcy.  It  was  stated,  however,  that  the  plaintiff  In  the 
fictitious  judgment  could  assert  his  rights,  if  any  he  had,  in  defending 
a  suit  to  be  Instituted  by  the  assignee  in  behalf  of  the  bankrupt's  estate. 
In  re  Schick,  1  N.  B.  R.  177;  21  Fed.  Cas.  689  (1867). 

A  debtor  who  voluntarily  aids  a  creditor  in  perfecting  an  attachment 
of  his  goods  which  was  previously  incomplete,  committed  an  act  of 
bankruptcy  within  the  terms  of  the  Act  of  1841.  Fisher  et  al.  v.  Currier 
et  al.,  5  Law  Rep.  217;  0  Fed.  Cas.  127  (1842). 

A  debtor,  being  insolvent,  or  contemplating  insolvency,  who  fails  to 
file  a  petition  in  voluntary  bankruptcy,  and  whose  property  is  levied 
upon,  was  held  to  have  "  suffered  his  property  to  be  taken  on  legal 
process  "  within  the  meaning  of  the  Act  of  1867.  In  re  Dibblee  et  al., 
3  Ben.  283;  7  Fed.  Cas.  651. 

A  creditor  levied  on  the  property  of  the  bankrupt  in  such  a  manner 
as  to  give  himself  a  preference  over  other  creditors.  He  then  set  up 
these  facts  in  a  petition  for  involuntary  bankruptcy,  on  the  ground  that 
the  debtor  had  "  suffered  his  property  to  be  taken  on  legal  process." 
It  was  held  that  the  petition  could  be  entertained.  Coxe  et  al.  v.  Hale 
et  al.,  10  Blatchf.  56;  6  Fed.  Cas.  689. 

A  debtor  who  procures  the  appointment  of  a  receiver  in  a  state  court 
is  chargeable  with  defeating  and  delaying  the  operations  of  the  Bank- 
rupt Act.    In  re  Bininger  et  al.,  7  Blatchf.  262;  3  Fed.  Cas.  412. 

The  property  of  a  debtor  had  been  attached  without  his  knowledge, 
and  he  had  failed  to  have  himself  adjudged  a  bankrupt  by  voluntary 
proceedings.  The  court  held  that  this  omission  could  have  no  retro- 
active effect  to  supply  the  intent  necessary  to  make  the  attachment  an 
act  of  bankruptcy.     In  re  Belden  et  al.,  2  N.  B.  R.  42;  3  Fed.  Cas.  82. 

Proceedings  to  wind  up  the  affairs  of  an  insurance  company  under  the 
laws  of  Illinois,  and  the  appointment  of  a  receiver,  were  held  to  be  an 
act  of  bankruptcy  as  constituting  n  taking  on  legal  process.  The  failure 
of  the  company  to  file  a  voluntary  petition  in  bankruptcy  was  Itself  an 
act  of  bankruptcy,  and  the  fact  that  the  state  court  had  first  obtained 
jurisdiction  of  the  parties  and  the  property  did  not  afCect  the  jurisdic- 
tion of  the  court  In  bankruptcy.  In  re  Merchants'  Ins.  Co.,  3  Biss.  162; 
17  Fed.  Cas.  41.  ' 

When  a  debtor  finds  himself  insolvent,  it  is  his  duty  to  file  a  petition 
in  voluntary  proceedings.     Failing  In  that,  if  some  of  his  creditors  take 


Bankrupts.  61 

his  property  by  attachment  or  execution,  he  may  be  adjudged  a  biink- 
rupt  for  having  suffered  his  property  to  be  talien  under  legal  process. 
In  re  Wells,  3  N.  B.  R.  371;  29  Fed.  Cas.  637. 

Proceedings  were  commenced  under  the  laws  of  the  state  dissolving 
a  corporation  and  appointing  a  receiver,  who  took  possession  of  its 
property.  It  was  held  that  this  constituted  an  act  of  bankruptcy  on 
the  part  of  the  company  in  suffering  its  property  to  be  taken  on  legal 
process.     In  re  Washingon  Marine  Ins.  Co.,  2  Ben.  292;  29  Fed.  Cas.  365. 

It  was  held  not  to  be  a  suffering  to  take  property  under  legal  process 
for  a  debtor  to  remain  passive  during  proceedings  to  collect  a  claim 
which  was  due,  and  to  which  there  was  no  defense.  National  Bank  v. 
Warren,  96  U.  S.  539. 

The  district  court  of  California  decided  that  the  decision  of  the  supreme 
court  in  Wilson  v.  City  Bank  of  St.  Paul,  17  Wall.  84,  did  not  apply 
to  the  case  where  a  debtor,  hopelessly  insolvent,  fails  to  apply  for  the 
benefit  of  the  Bankrupt  Act,  and  suffers  certain  creditors  to  appropriate 
all  of  his  assets.    Hyde  v.  Corrlgan,  9  N.  B.  R.  466;  12  Fed.  Oas.  1106^ 

Held,  under  the  Act  of  1867,  that  the  entering  of  a  judgment  in  pur- 
suance of  a  warrant  of  attorney  within  two  months  before  the  filing 
of  a  creditor's  petition  is  not  an  act  of  bankruptcy  within  the  provision 
of  the  statute.     Balfour  v.  Wheeler,  18  Fed.  Rep.  8ii6. 

It  was  held  to  raise  a  presumption  of  fraudulent  Intent  where  a  debtor 
gave  a  judgment  note  payable  fn  one  day  with  the  right  to  issue  execu- 
tion therewith.     Clarion  Bank  v.  Jones,  21  Wall.  325. 

The  alleged  bankrupt  had  made  a  confession  of  Judgment  to  one  of 
his  creditors  with  Intent  to  give  him  a  preference.  He  was  insolvent 
at  the  time,  but  did  not  know  that  there  was  such  a  thing  as  the  bank- 
ruptcy law.  This  was  held  to  come  within  section  39  of  the  Act  of  1867 
In  that  "  he  suffered  his  property  to  be  taken  on  legal  process."  In  re 
Oi-aft,  2  Ben.  214;  6  Fed.  Cas.  698. 

Miscellaneous. 

The  giving  of  a  chattel  mortgage  by  an  infant  is  not  an  act  of  bank- 
ruptcy, being  subject  to  his  election  to  confirm  or  disafiirm  when  he 
comes  of  age.    In  re  Derby,  6  Ben.  232;  7  Fed.  Cas.  513. 

Judge  Dillon  held  that  "  a  person  who  is  so  unsound  in  mind  as  to 
be  wholly  incapable  of  managing  his  affairs  cannot  in  that  condition 
commit  an  act  for  which  he  can  be  forced  into  bankruptcy  by  his  cred- 
itors against  the  objection  of  the  guardian.  Whether  such  person  on  the 
petition  of  himself  or  his  guardian  may,  if  insolvent,  go  into  voluntary 
bankruptcy,  the  court  gives  no  opinion."  In  re  Marvin,  1  Dill.  178;  16 
Fed.  Cas.  927. 

A  corporation  cannot  commit  an  act  of  bankruptcy  after  being  dis- 
solved, and  a  receiver  appointed.  The  collection,  under  legal  process, 
of  an  asset  of  a  corporation  by  such  receiver,  more  than  six  months 
after  the  dissolution  of  the  corporation,  does  not  constitute  an  act  of 
baakruptcy;  and  cannot  be  the  cause  of  proceedings  in  bankruptcy.    The 


63  The  Bankeuptcy  Law. 

thirty-ninth  section  of  the  Act  of  1867  required  that  the  petition  shall  be 
brought  within  six  months  after  the  act  of  bankruptcy  has  been  com- 
mitted.   In  re  New  Amsterdam  Fire  Ins.  Co.,  6  Ben.  368;  18  Fed.  Gas.  34. 

An  act  which  is  not  a  fraud  in  itself  may  be  a  violation  of  the  bank- 
rupt law,  because  it  seeks  to  evade  or  avoid  its  provisions.  Webb  v. 
Sachs,  4  Saw.  158;  29  Fed.  Cas.  523. 

Upon  the  service  of  process  In  involuntary  proceedings  the  alleged 
banltrupt  indorsed  on  a  copy  of  the  petition  an  admission  of  the  truth 
of  the  averments  contained  therein,  except  as  to  those  charging  fraud. 
Before  the  hearing,  he  filed  his  voluntary  petition  in  the  same  court,  and 
an  adjudication  was  had.  Subsequently  the  court  held  that  the  adjudi- 
cation was  of  no  effect,  and  entertained  the  proceedings  in  involuntary 
bankruptcy.    In  re  Stewart,  3  N.  B.  R.  108;  23  Fed.  Cas.  51 

Where  one  partner  procures  another  to  leave  the  state,  the  latter,  but 
not  the  former,  commits  an  act  of  bankruptcy.  In  re  Terry,  5  Biss.  110; 
23  Fed.  Cas.  852. 

When  a  deposition  is  relied  upon  to  prove  an  act  of  bankruptcy  it 
must  show  the  fraudulent  intent  of  the  debtor  in  making  the  convey- 
ance complained  of,  but  the  omission  can  be  supplied  by  a  supplemental 
deposition.    Cunningham  v.  C'ady,  13  N.  B.  R.  525;  6  Fed.  Cas.  966. 

EfiPect  will  be  given  to  the  admission  of  a  fact  from  which  a  fraudulent 
intent  may  be  inferred,  though  the  admission  be  qualified  with  a  denial 
of  such  fraudulent  intent.  In  re  Sutherland,  Deady,  344;  23  Fed.  Cas. 
454. 

Held,  under  the  Act  of  1841,  that  it  was  not  necessary  that  a  prefer- 
ence should  have  been  spontaneous  to  make  it  an  act  of  bankruptcy. 
Van  Kleeck  et  al.  v.  Thurber,  28  Fed.  Cas.  1031  (1842). 

Justice  Hunt  said  that  acts  or  omissions  that  might  be  evidence  of  in- 
solvency or  fraud  in  a  strictly  commercial  community  may  possess  less 
significance  in  the  rural  districts.  Lakin  v.  First  Nat.  Bank,  13  Blatchf. 
83;  14  Fed.  Cas.  959. 

A  debtor  who  files  a  petition  in  voluntary  bankruptcy  thereby  com- 
mits an  act  of  bankruptcy,  and  a  creditor  cannot  oppose  the  adjudication 
on  the  ground  that  he  is  really  able  to  pay  his  debts.  In  re  Fowler,  1 
Low.  161;  9  Fed.  Cas.  614. 

Concealment  of  the  debtor  from  creditors  is  not  an  act  of  bank- 
ruptcy, if  it  does  not  prevent  the  service  of  process.  Barnes  v.  Belling- 
ton,  1  Wash.  C.  C.  29;  2  Fed.  Cas.  858  (1803). 

Only  acts  of  bankruptcy  which  are  set  up  in  the  petition  can  be  proved 
on  the  hearing.     Ex  parte  Shouse,  Crabbe,  482;  22  Fed.  Cas.  27  (1842). 

Creditors  are  not  protected  by  ignorance  of  the  law  when  they  have 
knowledge  of  facts  showing  that  their  debtor  is  insolvent.  Martin  v. 
Toof  et  al.,  1  Dill.  203;  16  Fed.  Cas.  907. 

Under  the  Act  of  1867  there  could  be  a  constructive  fraud,  consisting 
of  a  violation  of  the  terms  of  the  law,  without  an  actual  fraud  under 
section  12.    In  re  Riorden,  14  N.  B.  R.  332;  20  Fed.  Cas.  820. 

A  mere  omission  by  accident  or  mistake  was  held  not  to  constitute  a 
concealment  within  section  5021,  R.  S.    In  re  Scott,  11  Fed.  Rep.  133. 


Bankrupts.  63 

Insolvency  alone  is  never  an  act  of  bankruptcy,  and  when  an  act 
of  bankruptcy  has  been  once  committed,  a  debtor  cannot  be  relieved 
frgm  the  legal  consequences  thereof  except  by  lapse  of  time,  or  by  ar- 
rangement with  the  creditors  who  have  the  right  to  sue  on  account  of 
it.    In  re  Ryan,  5  Leg.  Gaz.  263;  21  Fed.  Cas.  105. 

(a.  — 2.)  A  large  number  of  notes  on  the  question  what  acts  constitute  a  preference  will  be 
found  under  section  69. 
(d.)  For  notes  on  the  examination  of  bankrupts,  see  section  21. 

[See  notes  to  §  8.] 

§  4.  Who  May  Become  Bankrupts. —  (a.)  Any  person  who  owes 
debts,  except  a  corporation,  shall  be  entitled  to  the  benefits  of  this 
Act  as  a  voluntary  bankrupt. 

(b.)  Any  natural  person,  except  a  wage-earner  or  a  person  engaged 
chiefly  in  farming  or  the  tillage  of  the  soil,  any  unincorporated  com- 
pany, and  any  corporation  engaged  principally  in  manufacturing, 
trading,  printing,  publishing,  or  mercantile  pursuits,  owing  debts  to 
the  amount  of  one  thousand  dollars  or  over,  may  be  adjudged  an  in- 
voluntary bankrupt  upon  default  of  an  impartial  trial,  and  shall  be 
subject  to  the  provisions  and  entitled  to  the  benefits  of  this  Act. 
Private  bankers,  but  not  national  banks  or  banks  incorporated  under 
State  or  Territorial  laws,  may  lie  adjudged  involuntary  bankrupts. 

(a.)  Aliens  residing  in  the  United  States  were  held  to  be  entitled  to 
the  benefit  of  the  Bankrupt  Act  of  1867.  In  re  Boynton,  10  Fed.  Rep. 
277.  So  held  also  by  Judge  Lowell.  In  re  Goodfellow,  1  Low.  510;  11 
Fed.  Cas.  594. 

An  infant  is  entitled  to  the  benefit  of  a  bankrupt  act,  and  the  peti- 
tion may  be  filed  in  his  own  name.  In  re  Book,  3  McLean,  307;  3  Fed. 
Cas.  (1843). 

Under  the  Law  of  1867,  a  married  woman  might  become  a  voluntary  or 
Involuntary  bankrupt.    In  re  Collins,  3  Biss.  415;  6  Fed.  Cas.  113. 

A  debtor  against  whom  involuntary  proceedings  had  been  commenced 
made  a  composition  with  his  creditors,  but  was  unable  to  carry  it  out, 
and  it  was  set  aside.  Thereupon,  he  filed  his  voluntary  petition,  and  a 
decree  of  adjudication  was  had.  The  court  stayed  the  former,  and  pro- 
ceeded with  the  voluntary  proceedings.  In  re  Flannigan,  5  Saw.  312;  9 
Fed.  Cas.  239. 

A  court  of  bankruptcy  has  no  jurisdiction  over  a  petition  filed  by  an 
Infant,  or  to  confirm  an  adjudication  of  bankruptcy  previously  made  on 
a  petition  filed  after  the  infant  comes  of  age.  In  re  Derby,  6  Ben.  232; 
7  Fed.  Cas.  513. 

(b.)  It  is  generally  true  that  proceedings  in  involuntary  bankruptcy  are 
proceedings  in  rem,  and  this  is  especially  true  where  the  bankrupt  is  a 
corporation.    Piatt  v.  Archer,  9  Blatchf.  559;  19  Fed.  Gas.  822. 


64  The  Bankruptcy  Law. 

After  an  adjudication  in  bankruptcy  by  default,  the  bankrupt  filed  a 
petition  claiming  that  he  was  insane  when  the  debts  of  the  petitioning 
creditor  were  incurred,  and  also  at  the  time  of  the  adjudication.  The 
adjudication  was  set  aside,  and  the  bankrupt  allowed  to  answer.  In 
re  Murphy,  10  N.  B.  K.  48;  17  Fed.  Cas.  1080. 

In  a  case  where  one  of  two  partners  filed  a  petition  in  voluntary  bank- 
ruptcy and  prayed  that  the  other  partner  might  be  adjudged  a  bank- 
rupt, alleging  that  he  had  refused  to  join  in  the  voluntary  petition,  the 
court  held  that  as  to  the  latter  the  proceeding  was  one  of  involuntary 
bankruptcy.    Midsker  v.  Bonebrake,  108  U.  S.  66. 

Judge  Gresham  held  that  in  Indiana  a  petition  in  bankruptcy  could  not 
be  sustained  against  a  married  woman  having  no  separate  property,  in- 
asmuch as  she  is  still  incompetent  to  contract  by  the  laws  of  the  state. 
In  re  Goodman,  5  Biss.  401;  10  Fed.  Cas.  601. 

Where  by  the  laws  of  the  state  a  married  woman  was  liable  to  an 
action  for  indebtedness  contracted  by  her  while  living  separate  and 
apart  from  her  husband,  she  may  be  adjudged  a  bankrupt  for  such  a 
claim.    In  re  Lyon,  2  Saw.  524;  15  Fed.  Cas.  1192. 

A  fire  insurance  company  was  held  to  be  within  the  language  of  sec- 
tion 37  of  the  Act  of  1867.  In  re  Merchants'  Ins.  Co.,  3  Biss.  162;  17  Fed. 
Cas.  41. 

A  railroad  company  is  "  a  business  corporation "  within  the  meaning 
of  section  37  of  the  Bankruptcy  Act  of  1867.  Adams  v.  Boston,  H.  &  B. 
R.  B.  Co.,  Holmes,  30;  1  Fed.  Cas.  90;  Ala.  &  C.  R.  Co.  v.  Jones,  5  N.  B. 
R.  97;  1  Fed.  Cas.  275. 

Under  the  Act  of  1867  the  court  of  bankruptcy  had  authority  to  ad- 
judicate a  railroad  company  bankrupt,  and  to  administer  its  property. 
New  Orleans,  etc.,  B.  Co.  v.  Delamore,  114  TJ.  S.  501. 

It  was  held  by  District  Judge  Durell  of  Louisiana  that  railroad  corpo- 
rations, in  their  character  as  branches  of  the  great  system  of  internal 
commerce,  were  not  within  the  province  of  the  bankrupt  law,  and  not 
liable  to  be  adjudged  bankrupts.  In  re  Oplousa  &  G.  W.  B.  Co.,  3  N. 
B.  R.  31;  18  Fed.  Cas.  751  (1869). 

Justice  Clifford  decided  in  the  case  cited  that  railroad  companies,  not 
being  created  for  the  administration  of  political  or  municipal  authority, 
are  private  corporations;  that  congress  has  power  to  subject  them  to  the 
provisions  of  a  bankrupt  act,  and  to  authorize  the  transfer  of  their 
franchises.  Sweatt  v.  Boston,  H.  &  E.  B.  B.  Co.  et  al.,  3  OlifC.  339;  23  Fed. 
Cas.  530. 

Notwithstanding  the  practical  difficulties  in  the  administration  in 
bankruptcy  of  a  railway  company,  such  corporations  are  not  excluded 
from  the  operation  of  the  Bankrupt  Act.  Winter  v.  Railway  Co.,  2  Dill. 
487;  30  Fed.  Cas.  329  (1873). 

A  railroad  corporation  was  held  to  be  subject  to  the  operations  of  the 
Bankrupt  Act,  notwithstandinp;  its  claim  that  it  belonged  to  a  system  of 
state  improvements,  and  could  not  be  considered  a  private  corporation. 
Bankins  et  al.  v.  Fla.,  A.  &  G.  O.  B.  R.  Co.,  1  N.  B.  B.  (yil;  20  Fed. 
Cas.  274. 


Bankrupts.  65 

Under  the  Act  of  1867,  the  petition  for  Involuntary  bankruptcy  against 

railroad  company  which  failed  to  allege  in  the  terms  of  the  act  (§  39) 
that  the  company  was  a  "  banker,  broker,  merchant,  trader,  manufacturer 
or  miner  "  was  held  defective;  no  proof  of  such,  facts  being-  offered,  the 
petition  was  dismissed.  Ala.  &  O.  R.  R.  Co.  t.  Jones,  5  N.  B.  R.  97;  1 
Fed.  Cas.  275. 

Proceedings  in  bankruptcy  against  a  railroad  company  were  dismissed 
where  the  stockholders,  who  had  purchased  all  the  outstanding  indebted- 
ness except  a  few  small  claims,  desired  it,  and  it  appeared  to  be  for  the 
best  interests  of  Wl  parties.  The  court  required,  however,  that  the  par- 
ties applying  for  the  dismissal  should  give  security  for  the  payment  of 
the  objecting  creditors.  In  re  Indianapolis,  O.  &  L.  R.  Co.,  5  Biss.  287; 
13  Fed.  Cas.  27. 

A  state  court  had  appointed  receivers  of  an  insurance  company  with 
authority  to  collect  its  assets,  made  perpetual  an  injunction  against  tlie 
further  prosecution  of  business,  and  declared  "  that  the  said  corpora- 
tion be,  and  the  same  is  hereby,  dissolved."  It  was  held  that  notwith- 
standing this  action,  proceedings  in  bankruptcy  might  be  maintained. 
In  re  Independent  Ins.  Co.,  Holmes,  103;  13  Fed.  Cas.  18. 

The  stockholders  of  a  corporation  had  become  individually  liable  for  its 
debts  under  the  provisions  of  the  law  of  Rhode  Island,  and  a  judgment 
creditor  filed  a  petition  to  have  them  adjudged  bankrupts.  The  district 
court  dismissed  the  petition,  and  the  circuit  court  confirmed  its  decision, 
holding  that  the  petitioner  was  restricted  to  the  remedies  provided  by 
the  law  creating  the  liability.  James  v.  Atlantic  D.  Co.  et  al.,  11  N.  B.  R. 
390;  13  Fed.  Cas.  300. 

That  a  corporation  is  not  such  as  to  be  liable  to  bankruptcy  proceedings 
is  a  fact  that  should  appear  by  the  pleading,  and  the  objection  is  waived 
by  an  omission  to  so  aver  in  the  answer.  In  re  Oregon  Bulletin  Printing 
Pub.  Co.,  13  N.  B.  R.  506;  18  Fed.  Cas.  773  (1876). 

Held,  that  the  petition  in  bankruptcy  must  show  that  the  alleged  bank- 
rupt corporation  was  such  a  corporation  as  was  subject  to  adjudication 
under  the  terms  of  the  bankrupt  law.  The  omission  of  such  averment 
renders  the  petition  demurrable.  Oregon  Bulletin  Printing  Pub.  Co.,  3 
Saw.  614;  18  Fed.  Cas.  783. 

[See  notes  under  §  50.] 

Paetneeship. 

§  5.  Partners. —  (a.)  A  partnership,  during  the  continuation  of  the 
partnership  business,  or  after  its  dissolution  and  before  the  final  settle- 
ment thereof,  may  be  adjudged  a  bankrupt. 

(b.)  The  creditors  of  the  partnership  shall  appoint  the  trustee;  in 
other  respects  so  far  as  possible  the  estate  shall  be  administered  as 
herein  provided  for  other  estates. 

5 


66  The  Bankkuptot  Law. 

(e.)  The  court  of  bankruptcy  which  has  Jurisdiction  of  one  of  the 
partners  may  have  jurisdiction  of  all  the  partners  and  of  the  adminis- 
tration of  the  partnership  and  individual  property. 

(d.)  The  trustee  shall  keep  separate  accounts  of  the  partnership 
property  and  of  the  property  belonging  to  the  individual  partners. 

(e.)  The  expenses  shall  be  paid  from  the  partnership  property  and 
the  individual  property  in  such  proportions  as  the  court  shall 
determine. 

(f.)  The  net  proceeds  of  the  partnership  property  shall  be  appro- 
priated to  the  payment  of  the  partnership  debts,  and  the  net  proceeds 
of  the  individual  estate  of  each  partner  to  the  payment  of  his  individual 
debts.  Should  any  surplus  remain  of  the  property  of  any  partner  after 
paying  his  individual  debts,  such  surplus  shall  be  added  to  the  part- 
nership assets  and  be  appUed  to  the  payment  of  the  partnership  debts. 
Should  any  surplus  of  the  partnership  property  remain  after  paying 
the  partnership  debts,  such  surplus  shall  be  added  to  the  assets  of  the 
individual  partners  in  the  proportion  of  their  respective  interests  in  the 
partnership. 

(g.)  The  court  may  permit  the  proof  of  the  claim  of  the  partnership 
estate  against  the  individual  estates,  and  vice  versa,  and  may  marshal 
the  assets  of  the  partnership  estate  and  individual  estates  so  as  to  pre- 
vent preferences  and  secure  the  equitable  distribution  of  the  property 
of  the  several  estates. 

(h.)  In  the  event  of  one  or  more  but  not  all  of  the  members  of  a 
partnership  being  adjudged  bankrupt,  the  partnership  property  shall 
not  be  administered  in  bankruptcy,  unless  by  consent  of  the  partner  or 
partners  not  adjudged  bankrupt;  but  such  partner  or  partners  not 
adjudged  bankrupt  shall  settle  the  partnership  business  as  expedi- 
tiously as  its  nature  will  permit,  and  account  for  the  interest  of  the 
partner  or  partners  adjudged  bankrupt. 

When  and  by  Wliom.  Proceedings  may  be  Instituted. 

Proceedings  in  bankruptcy  may  be  maintained  against  a  firm  as  long 
as  there  are  undistributed  joint  assets,  and  joint  liabilities.  In  re  Gor- 
ham,  9  Biss.  23;  10  Fed.  Cas.  823. 

As  long  as  there  are  partnership  debts  outstanding,  a  firm  that  has 
been  dissolved  is  subject  to  joint  adjudication.  In  re  Williams  et  al.,  1 
Low.  406;  20  Fed.  Cas.  1322. 

The  fact  that  one  of  the  members  of  a  firm  has  been  adjudged  a  bank- 
rupt will  not  prevent  proceedings  against  the  copartnership..  Hunt  et 
al.  V.  Pooke  et  al.,  5  N.  B.  E.  101;  12  Fed.  Oas.  930. 


Bankrupts.  67 

It  was  necessary,  under  the  Act  of  1841,  that  all  members  of  a  firm 
should  unite  in  a  petition  in  voluntary  bankruptcy.  Ex  parte  Hartz  et 
al.,  1  N.  Y.  Leg.  Obs.  39;  11  Fed.  Gas.  722  (1842). 

On  a  voluntary  petition  in  banliruptcy  by  a  firm,  the  court  can  deter- 
mine who  constituted  the  firm,  and  such  a  determination  will  stand  until 
it  is  set  aside.    In  re  Griffith  et  al.,  18  N.  B.  R.  510;  11  Fed.  Gas.  38. 

As  long  as  there  is  any  unfinished  business  on  the  part  of  the  firm, 
debts,  or  credits,  or  assets  of  any  kind,  it  is  within  the  province  of  the 
bankrupt  court  to  settle  it,  and  either  of  the  partners,  or  a  creditor,  may 
come  into  the  bankrupt  court  for  that  purpose.  In  re  Noonan,  5  Chi. 
Leg.  News,  5o7;  18  Fed.  Gas.  298. 

Persons  who  have  been  adjudged  banlu-upts  as  partners  cannot  there- 
after be  heard  to  deny  that  a  partnership  existed.  In  re  Gilbert  et  al., 
1  N.  Y.  Leg.  Obs.  327;  10  Fed.  Gas.  344. 

A  petition  against  a  firm  will  not  be  dismissed  because  one  of  the  part- 
ners dies  after  the  filing  but  before  adjudication.  Hunt  et  al.  v.  Pooke 
et  al.,  5  N.  B.  R.  101;  12  Fed.  Gas.  930. 

The  circuit  court,  affirming  the  district  court,  held  that  an  adjudication 
of  a  firm  in  one  district  will  not  prevent  proceedings  in  another  district 
against  another  firm,  some  of  the  partners  in  which  are  members  of  the 
former  firm.  In  re  Jewett  et  al.,  7  Biss.  473;  13  Fed.  Gas.  591;  s.  c.  in  the 
district  court,  7  Biss.  328;  13  Fed.  Gas.  585. 

A  married  woman  had  Invested  her  separate  property  in  a  partnership. 
The  court  held  that  it  was  not  necessary  to  make  her  husband  a  party  to 
proceedings  in  involuntary  bankruptcy  against  the  firm.  Lastrapes  et  al. 
V.  Blanc  et  al.,  3  Woods.  134;  14  Fed.  Gas.  1164. 

A  court  of  bankruptcy  will  not  entertain  a  petition  by  one  member  of  a 
firm  which  is  filed  for  the  purpose  of  harassing  his  partner.  In  re  Hamlin 
et  al.,  8  Biss.  122;  11  Fed.  Gas.  360. 

One  of  the  members  of  a  firm  which  has  been  dissolved,  and  its  debts 
settled,  cannot  have  an  adjudication  of  bankruptcy  against  the  firm  on 
representations  of  his  own  fraud  in  making  the  settlement.  In  re  Hamlin 
et  al.,  8  Biss.  122;  11  Fed.  Gas.  369. 

'  A  firm  of  three  members  was  dissolved  by  the  retiring  of  one  member. 
The  others,  after  doing  business  for  some  time,  filed  their  petition  in 
bankruptcy.  The  third  member  objected  to  the  proceedings,  and  it  was 
held  that  the  court  had  jurisdiction  of  the  firm  property  on  the  petition 
of  the  two  partners.    In  re  Mitchell  et  al.,  3  N.  B.  R.  441;  17  B"ed.  Oas.  491. 

Under  the  Act  of  1841  members  of  a  dissolved  firm  could  not  apply  for 
an  adjudication  in  bankruptcy  as  to  their  joint  debts  where  there  was  no 
partnership  property  within  the  jurisdiction  of  the  court.  Bx  parte 
Hartz  et  al.,  1  N.  Y.-  Leg.  Obs.  39;  11  Fed.  Oas.  722  (1842). 

A  firm  had  been  dissolved  and  one  of  the  parties  had  assumed  its  debts 
and  given  a  bond  for  their  payment.  Thereafter,  he  filed  a  petition 
against  the  firm.  The  creditors  did  not  unite  in  the  petition.  The  peti- 
tion was  dismissed.    In  re  Bennett  et  al.,  2  Low.  400;  3  Fed.  Gas.  209. 

Under  the  Act  of  1867  the  bankruptcy  of  one  partner  dissolved  the 
partnership,  and  the  assignee  in  bankruptcy  became  tenant  in  common 


68  The  Bankbuptcy  Law. 

with  the  solvent  partner  as  to  the  "joint  stock.  Willdns  v.  Davis,  2  Low. 
511;  29  Fed.  Gas.  1248. 

A  decree  of  bankruptcy  against  a  member  of  a  firm  dissolves  the  part- 
nership, and  the  partnership  effects  are  vested  in  the  assignee  and  the 
solvent  partners  as  by  a  tenancy  in  common.  Ex  parte  Norcross,  5  Law 
Rep.  124;  18  Fed.  Oas.  300. 

A  partnership  had  been  dissolved,  and  one  of  the  partners  had  under- 
taken to  pay  all  the  firm  debts,  but  this  agreement  had  not  been  assented 
to  by  the  creditors.  It  was  held  that  he  could  maintain  a  petition  to 
have  himself  and  his  copartner  adjudged  bankrupt.    In  re  Stowers  et  al., 

1  Low.  528;  23  Fed.  Gas.  209. 

Under  the  Act  of  186T  the  surviving  partner  could  be  adjudged  a  bank- 
rupt for  acts  done  respecting  the  assets  cf  a  former  partnership,  not- 
withstanding the  individual  estate  of  the  deceased  partner  was  sufficient 
to  pay  all  the  firm  and  personal  debts.  In  re  Stevens,  1  Saw.  397;  23 
Fed.  Cas.  4. 

Where  one  partner  obtained  an  adjudication  against  his  firm  which  had 
been  dissolved  by  the  death  of  his  copartner,  it  was  held  that  the  adjudi- 
cation was  void.    In  re  Temple,  4  Saw.  92;  23  Fed.  Cas.  835. 

The  business  of  a  firm  had  been  continued  by  the  executors  of  a  de- 
ceased partner.  Proceedings  in  bankruptcy  were  commenced  against  the 
firm,  and  the  real  estate  of  the  decedent  sold.  Held,  that  the  purchaser 
acquired  no  valid  title.    Adams  et  al.  v.  Tarrell,  4  Fed.  Eep.  796. 

Proceedings  in  bankruptcy  against  a  firm  does  not  give  the  court  juris- 
diction over  the  separate  estate  of  a  deceased  partner.  So  held  under  the 
Act  of  1867  (section  12).    Ibid. 

There  must  be  an  adjudication  of  bankruptcy  against  partners  com- 
posing a  firm,  and  an  assignee  must  be  appointed  in  such  proceeding, 
before  any  step  can  be  taken  to  reach  in  bankruptcy  the  partnership 
assets.  In  re  Sheppard,  3  Ben.  347;  2  N.  B.  R.  172;  21  Fed.  Cas.  1256 
(1869). 

When  one  partner's  petition  to  have  the  firm  adjudged  voluntary  bank- 
rupt on  the  ground  of  Insolvency,  and  the  other  partner  denying  the  fact 
of  a  partnership,  a  verdict  is  rendered  that  a  partnership  existed,—  after 
adjudication  and  in  proceedings  for  discharge,  it  was  held  tliat  the 
resisting  partner  should  be  deemed  a  voluntary  bankrupt.     In  re  Wilson, 

2  Low.  453;  13  N.  B.' R.  253;  30  Fed.  Gas.  97  (1875). 

When  there  are  firm  debts  and  firm  assets  the  firm  must  be  declared 
bankrupt  by  either  voluntary  or  involuntary  proceedings  before  any  mem- 
ber of  the  firm  can  be  discharged  in  bankruptcy  from  its  liability.  This 
does  not  apply  to  copartnerships  previously  terminated  by  bankruptcy, 
insolvency,  assignment  or  otherwise.  In  re  Wlnkens;  2  N.  B.  R.  349;  30 
Fed.  Cas.  302  (1869). 

Where  a  petition  against  a  firm  named  only  two  of  three  partners,  it 
was  held  that  the  third  partner  could  not  be  added,  by  amendment,  after 
the  testimony  had  been  taken,  and  that  no  adjudication  could  be  had 
against  the  firm.    In  re  Pitt  et  al.,  8  Ben.  389;  19  Fed.  Cas.  745. 


Bankrupts.  69 

Partners  Lave  the  right  severally  as  well  as  jointly  to  institute  volun- 
tary proceedings  in  banliruptcy  wliereby  they  may  be  discharged  from 
that  partnership  as  well  as  their  individual  liability.  In  re  Noonan,  5 
Chi.  Leg.  News,  557;  18  Fed.  Cas.  298. 

A  discharge  in  bankruptcy  releases  a  member  of  a  firm  from  his  joint 
as  well  as  his  separate  debts,  and  his  partners  are  bound  by  the  dis- 
charge as  well  as  joint  creditors.  Willjins  v.  Davis,  2  Low.  511;  2&  Fed. 
Cas.  1248. 

When  there  are  no  partnership  assets  to  be  collected  and  paid  out,  one 
member  of  a  former  partnership  may,  upon  his  individual  petition,  be 
discharged  from  all  his  debts,  partnership  and  private.  In  re  Marx,  16 
Fed.  Cas.  763. 

It  was  held  under  the  Act  of  1841  that  a  firm  is  liable  to  be  adjudged 
banlirupts  upon  acts  committed  prior  to  the  passage  of  the  law.  Ex 
parte  How  et  al.,  1  N.  Y.  Leg.  Obs.  1;  12  Fed.  Oas.  853. 

On  the  motion  of  three  bankrupts  composing  a  firm  for  a  discharge, 
creditors  who  opposed  the  discharge  of  two  of  them  offered  in  evidence  a 
decree  In  a  suit  brought  against  them  by  the  assignee,  and  depositions 
by  each  of  them  In  that  suit;  also  proof  of  statements  to  other  parties 
made  by  the  third  partner  to  the  bankrupts.  Judge  Blatchford  decided 
that  each  deposition  was  evidence  against  the  deponent;  that  the  decree 
was  evidence  against  all  of  them,  and  that  the  deposition  and  statements 
of  the  third  partner  were  not  admissible  against  either  of  the  other  two. 
In  re  Leland  et  al.,  8  Ben.  204;  15  Fed.  Oas.  290. 

It  was  competent  for  a  court  of  bankruptcy  under  the  Act  of  1807  to 
adjudge  a  pai-ty  a  bankrupt  both  as  an  individual  and  as  the  surviving 
partner  of  a  firm.    Briswalter  v.  Long,  14  Fed.  Rep.  153. 

The  fact  that  two  firms  were  concerned  together  in  a  certain  business 
entei-prise  and  kept  a  joint  account  in  bank  did  not  establish  a  copartner- 
ship between  them,  so  that  the  holder  of  one  of  their  checks  could  file  a 
petition  in  bankruptcy  against  the  members  of  both.  In  re  Warner  et  al., 
7  N.  B.  R.  47;  29  Fed.  Cas.  233. 

Certain  persons  who  had  formed  themselves  into  an  association  failed 
to  comply  with  the  laws  of  the  state  respecting  corporations,  but  con- 
tinued to  do  business  as  an  association.  It  was  held  that  they  were  liable 
as  copartners,  and  that  a  creditor  who  had  dealt  with  them  in  their  sup- 
posed character  as  a  corporation  was  not  estopped  from  proceeding 
against  them  on  their  Individual  liability.  In  re  Mendenhall,  9  N.  B.  R. 
497;  17  Fed.  Cas.  10. 

A  petition  in  bankruptcy  against  a  firm  was  resisted  by  one  of  the 
alleged  members  on  the  ground  that  he  was  a  special,  and  not  a  general 
partner.  The  proof  was  that  he  had  contributed  a  sum  of  money  and  a 
stock  of  goods  under  an  agreement  with  his  copartners  that  he  should  be 
a  special  partner  only.  It  was  held  that  this  did  not  comply  with  the 
laws  of  New  York  on  the  subject  of  limited  partnerships,  and  that  he 
must  be  treated  as  a  general  partner.  In  re  Merrill  et  al.,  12  Blatehf.  221; 
17  Fed.  Cas.  82. 


70  The  Bankhuptcy  Law. 

An  adjudication  against  tiie  ostensible  members  of  a  firm  is  binding  on 
tlie  partnership  property,  notwitlistanding  a  dormant  partner  is  omitted. 
Metcalf  V.  Officer  et  al.,  5  Dill.  565;  17  Fed.  Cas.  174. 

Where  one  partner  files  a  petition  that  the  firm  be  adjudged  bankrupt, 
another  partner  may  oppose  the  adjudication  by  showing  that  the  firm  is 
not  insolvent.    In  re  Fowler,  1  Low.  161;  9  Fed.  Cas.  614. 

A  partnership  creditor  may  proceed  against  one  partner  alone  on  a 
joint  debt.    In  re  Melick,  4  N.  B.  R.  97;  16  Fed.  Cas.  132S. 

A  partnership  consisting  of  husband  and  wife  may  be  adjudicated  bank- 
rupts, and  Judge  Blodgett,  of  the  district  court  of  Illinois,  intimated  that 
there  might  also  be  an  adjudication  as  to  the  wife  individually.  In  re 
Klnkead,  3  Biss.  405;  14  Fed.  Cas.  599. 

One  member  of  a  firm  sold  out  his  interest  to  a  third  person.  There- 
after, the  remaining  partner  filed  a  petition  asking  for  an  adjudication 
as  to  the  firm  and  each  of  Its  members.  There  was  no  joint  property  at 
the  time  of  the  application.  It  was  held  that  section  36  of  the  Act  of 
1867  did  not  authorize  such  a  proceeding  as  to  the  firm  or  the  retired 
partner.    In  re  Hartough,  3  N.  B.  R.  422;  11  Fed.  Cas.  707. 

One  who  was  known  to  be  a  secret  partner  when  the  indebtedness  was 
incurred  may  be  adjudged  a  bankrupt  on  a  petition  against  the  firm, 
though  entirely  solvent,  and  though  he  had  not  himself  committed  any 
acts  of  bankruptcy.    In  re  Ess  et  al.,  3  Biss.  301;  8  Fed.  Cas.  785. 

A  partner  who  has  retired  from  the  firm  may,  nevertheless,  be  adjudi- 
cated a  bankrupt  with  the  other  partners  when  the  business  was  con- 
ducted in  the  old  name,  and  he  permitted  himself  to  be  held  out  as  a 
member  of  the  firm.    In  re  Krueger  et  al.,  2  Low.  66;  14  Fed.  Cas.  868. 

C.,  S.  and  J.  were  members  of  a  firm  which  had  been  dissolved.  After 
dissolution,  O.  and  S.  filed  a  petition  for  an  adjudication  of  bankruptcy 
of  themselves  and  J.  The  only  partnership  asset  was  a  right  of  action 
for  an  alleged  tort.  Held,  under  section  14  of  the  Act  of  1867,  that  the 
claim  was  not  one  that  passed  to  the  assignee,  and  that  the  petition  must 
be  dismissed  as  to  J.    In  re  Crockett  et  al.,  2  Ben.  514;  6  Fed.  Cas.  836. 

Under  the  Act  of  1867  it  was  held  that  the  adjudication  of  a  member 
of  a  firm,  and  of  the  firm,  must  be  made  on  one  petition,  and  that  two 
petitions  for  such  purpose  could  not  be  consolidated.  In  re  Plumb,  9  Ben. 
279;  19  Fed.  Cas.  886. 

When  there  are  no  assets  of  a  copartnership  to  be  administered,  a 
member  of  a  late  copartnership  may,  upon  his  individual  petition,  be  dis- 
charged from  all  his  debts,  copartnership  as  well  as  individual.  In  re 
Abbe,  7  A.  L.  Reg.  (N.  C.)  824;  1  Fed.  Cas.  3. 

When  a  member  of  a  firm  is  discharged  on  his  individual  petition  he 
is  not  released  from  the  partnership  debts.  Hudgins  v.  Lane  et  al.,  2 
Hughes,  361;  12  Fed.  Cas.  800. 

One  member  of  a  firm  filed  a  petition  in  bankruptcy  and  took  up  on  his 
schedules  the  assets  and  liabilities  of  the  firm.  An  application  of  another 
partner  to  be  made  a  party  to  these  proceedings,  and  to  have  the  firm 
adjudged  bankrupt  was  allowed.  In  re  Gorham,  9  Biss.  23;  10  Fed 
Cas.  823. 


Bankrupts.  71 

A  creditor  petitioned  for  an  order  to  compel  the  bankrupts,  who  were 
partners,  to  amend  their  petition  by  Including  others  who  were  alleged  to 
be  copartners.  The  petition  was  dismissed,  the  court  saying  that  it  was 
an  attempt  under  the  guise  of  voluntary  bankruptcy  to  accomplish  in- 
voluntary bankruptcy.  In  re  Harbough  et  al.,  1&  N.  B.  R.  246;  11  Fed. 
Cas.  476. 

After  adjudication  the  bankrupt  and  his  assignee  filed  a  petition  setting 
up  that  the  bankrupt  was  a  member  of  a  firm  with  debts  and  assets,  and 
praying  that  the  other  members  might  be  brought  in,  and  an  adjudication 
had  as  to  the  firm.  The  court  refused  to  dismiss  the  petition  summarily, 
and  ordered  the  other  partners  to  answer.  In  re  Kelley,  19  N.  B.  R.  326; 
14  Fed.  Cas.  236. 

The  court  allowed  a  petitioner  in  voluntary  bankruptcy  to  amend  his 
petition  so  as  to  make  it  cover  partnership  as  v/ell  as  personal  debts.  In 
re  Bidwell,  2  N.  B.  R.  229;  3  Fed.  Cas.  38S. 

Where  only  one  partner  had  signed  a  petition  under  the  Act  of  1867, 
Judge  Drummond  said:  "There  is  nothing  that  I  can  see  in  the  bank- 
rupt law  to  prevent  one  partner  from  making  his  application  for  a  dis- 
charge under  the  law  from  his  individual  debts,  and  from  his  debts  as  a 
copartner  of  a  firm.  It  seems  to  be  desirable  that  the  nonjoining  partner 
should  know  that  the  appUcation  is  made,  leaving  it  optional  that  he 
come  in  if  he  pleases,  or  take  any  action  he  may  choose.  *  *  *  The 
law  does  not  require,  nor  does  the  rule  (Rule  18)  —  and  in  fact  the  law 
seems  to  be  otherwise  —  that  before  a  member  of  a  firm  can  be  discharged 
under  the  bankrupt  law,  he  must  request  the  other  members  of  the  firm 
also  to  apply.  The  rule  seems  to  give  the  option  to  that  member  of  the 
firm  who  does  not  apply  to  join  in  the  application  and  declares  what  the 
consequences  shall  be  to  nonjoinders.  *  *  *  Of  course  the  petition 
must  be  amended  and  ask  that  the  firm  be  declared  bankrupt."  In  re 
Moore  et  al.,  5  Biss.  79;  17  Fed.  Cas.  661. 

The  Interest  of  one  of  the  members  of  a  limited  partnership  was  pur- 
chased by  the  other  members.  The  other  members  having  been  adjudi- 
cated bankrupts,  it  was  held  that  the  assignee  had  no  claim  against  the 
former  partner.    Wight  v.  Oondict,  154  U.  S,  666. 

The  firm  of  W.  &  N.  bought  out  the  firm  of  W.  &  B.  and  assumed  its 
debts.  W.  &  N.  filed  a  voluntary  petition,  and  asked  that  B.  be  included 
in  the  decree.  The  court  held  that  this  could  not  be  done.  In  re  Wallace 
et  al.,  12  N.  B.  R.  191;  29  Fed.  Cas.  67. 

It  is  unnecessary  to  enumerate  in  detail  the  effects  of  the  bankrupt 
partner  in  the  petition.  It  is  more  convenient  that  this  be  done  subse- 
quently before  a  commissioner.  Ex  parte  Norcross,  5  Law  Rep.  124;  18 
Fed.  Cas.  300  (1843;. 

On  the  petition  of  a  bankrupt  who  was  a  member  of  two  firms,  the 
court  held  that  it  had  jurisdiction  of  his  petition  in  favor  of  himself,  and 
as  against  his  copartners,  to  adjudicate  upon  himself  and  the  firms.  In 
re  Smith,  16  Fed.  Rep.  465. 


72  The  Bankruptcy  Law. 

Administration   of   Joint   and   Separate   Estates. 

It  was  held  that  if  one  member  of  a  firm  applied  for  the  benefit  of  the 
Bankrupt  Act  of  1841,  if  the  firm  were  insolvent,  the  assignee  took  all 
of  its  effects.  McLean  v.  Johnson  et  al.,  3  McLean,  202;  16  Fed.  Cas. 
251  (1843). 

Creditors  of  a  firm,  one  member  of  which  is  dead,  can  enforce,  by  pro- 
ceedings in  bankruptcy,  the  equitable  obligation  of  the  survivor  to  apply 
the  joint  estate  to  the  payment  of  the  partnership  debts.  In  re  Clap, 
2  Low.  168;  5  Fed.  Cas.  814. 

Under  the  Act  of  1841,  where  a  firm  and  the  individual  members  were 
bankrupts,  the  adjudication  went  against  all  of  them,  and  their  joint 
and  separate  property  passed  to  the  assignees.  Fisher  et  al.  v.  Currier 
et  al.,  5  Law  Rep.  217;  9  Fed.  Cas.  127  (1842). 

An  adjudication  of  one  of  the  members  of  a  firm  upon  his  own  petition 
does  not  give  the  assignee  any  title  to  the  property  of  the  firm.  Hudgins 
V.  Lane  et  al.,  2  Hughes,  361;  12  Fed.  Cas.  800. 

An  assignee  cannot  deal  with  the  joint  proiDerty  of  a  firm  unless  all 
the  members  are  adjudged  bankrupt.  Crompton  et  al.  v.  Conkllng,  9 
Ben.  225;  6  Fed.  Cas.  848. 

The  fact  that  one  partner  is  solvent  while  the  others  are  insolvent 
does  not  entitle  him  to  take  goods  out  of  the  possession  of  the  bank- 
rupt court,  such  possession  being  acquired  through  proceedings  in  bank- 
ruptcy against  the  insolvent  partners.  In  re  Shannahan,  6  Biss.  39;  21 
Fed.  Cas.  1153  (1874). 

It  was  held  under  the  Act  of  1800  that  where  a  separate  commission 
was  issued  against  one  partner,  only  his  interest  in-  the  partnership 
property  passed  to  the  assignee.    Harrison  v.  Sterry,  5  Oranch,  289. 

A  debtor  who  was  a  member  of  two  firms  filed  his  individual  petition 
in  bankruptcy,  entering  on  his  schedules  the  assets  and  liabilities  of 
both  firms.  After  he  had  been  adjudicated  a  bankrupt,  the  assignees 
petitioned  the  court  to  adjudge  the  two  firms  bankrupt.  The  other 
partners  opposed  the  proceeding,  and  denied  that  their  firms  had  com- 
mitted any  act  of  bankruptcy.  The  court  granted  the  motion  of  the 
assignees,  holding  that  the  separate  petitioner  could  not  be  discharged 
of  a  portion  of  his  liabilities  merely,  but  if  at  all,  it  must  be  of  all  of 
them;  and  that  this  could  not  be  done  unless  the  debts  of  both  firms 
of  which  he  was  a  member  were  paid,  or  the  firm  assets  administered 
in  the  court  of  bankruptcy.    In  re»Grady,  3  N.  B.  E.  227;  10  Fed.  Cas.  904. 

The  bankrupts  were  a  firm  that  had  in  its  hands  assets  of  prior  firms 
in  which  the  plaintiff  was  a  partner.  After  nearly  two  years  he  de- 
manded of  the  assignee  in  bankruptcy  an  account  of  his  interest  in  the 
old  firm.  Ten  years  later,  he  brought  this  action  to  assert  his  right  to 
administer  its  assets  as  the  sole  solvent  partner.  It  was  held  that  his 
right  of  action  was  barred  by  laches  and  by  section  5057,  Revised  Stat- 
utes.    Vetterlein  v.  Barnes,  6  Fed.  Rep.  603. 

Under  the  laws  of  Massachusetts  respecting  limited  partnerships,  the 
court  held  that  where  the  general  partner  in  such  a  firm  became  bank- 


Bankrupts.  73 

rnpt,  and  the  assets  were  not  sufficient  to  pay  the  joint  debts,  his  as- 
signee could  recover  from  the  special  partner  such  sums  as  had  been 
withdrawn  by  him  during  the  continuance  of  the  firm.  Wilkins  v.  Davis, 
2  Low.  511;  29  Fed.  Gas.  1348. 

Where  one  partner  becojiies  banljrupt,  his  assignee  only  talces  that 
portion  of  the  partnership  assets  which  would  belong  to  the  bankrupt 
after  payment  of  all  the  partnership  debts;  the  solvent  partners  having 
a  lien  on  all  the  partnership  assets  for  the  firm  debts,  and  also  for  their 
own  shares  thereof  before  the  separate  creditor  of  the  banlirupt  can 
take  anything.  Parker  v.  Muggridge,  2.  Story,  3.34;  18  Fed.  Oas.  1148 
<1842). 

A  firm  was  dissolved  and  the  property  divided  between  the  partners. 
One  of  them  sold  an  interest  in  his  share  to  a  third  person  and  formed 
a  partnership  with  him.  The  new  firm  contracted  debts  and  became 
bankrupt.  Before  the  adjudication  a  creditor  of  the  old  firm  attached 
their  property.  It  was  held  that  the  assignee  in  bankruptcy  was  entitled 
to  the  joint  property  of  the  new  firm  for  the  benefit  of  its  creditors,  and 
that  only  the  balance  was  subject  to  attachment  by  creditors  of  the 
old  firm.     Crane  v.  Morrison  et  al.,  4  Saw.  138;  6  Fed.  Gas.  757. 

When  one  member  of  a  firm,  who  is  in  possession  of  its  assets,  be- 
comes bankrupt,  they  are  not  assets  in  the  hands  ot  the  assignee,  and 
if  he  gains  possession  of  them  he  must  account  for  the  proceeds  to  the 
creditors  of  the  firm.  Jones  et  al.  v.  Newson  et  al.,  7  Biss.  321;  13  Fed. 
Cas.  996. 

Under  the  Act  of  1867  a  creditor  who  had  proved  a  debt  against  one 
member  of  a  firm  only  could  not  participate  in  the  election  of  an  as- 
signee for  the  firm.     In  re  Phelp  et  al.,  1  N.  B.  E.  525;  19  Fed.  Cas.  436. 

Under  the  Act  of  1867,  in  the  case  of  the  separate  bankruptcy  of  one 
member  of  a  firm,  a  joint  creditor  had  a  right  to  prove  his  joint  debt, 
and  vote  for  assignee.     In  re  Webb,  4  Saw.  326;  29  Fed.  Cas.  495. 

Distribution  of  Assets,  Etc. 

Where  an  individual  partner  fraudulently  drew  and  deposited  checks, 
and  hypothecated  them  as  securities  for  the  benefit  of  the  firm  without 
first  receiving  the  proceeds  of  such  checks  and  hypothecations,  the  firm 
is  liable  for  conversion.    In  re  Ketchum  et  al.,  1  Fed.  Rep.  815. 

Where  the  members  of  a  firm,  more  than  four  months  before  the  com- 
mencement of  proceedings  in  bankruptcy,  conveyed  to  one  partner  all  of 
their  property,  both  joint  and  several,  and  he  assumed  the  debts  of  the 
firm,  it  was  decided  that  all  the  assets  should  be  treated  as  the  separate 
assets  of  such  partner.  In  re  Collier  et  al.,  12  N.  B.  R.  266;  6  Fed.  Gas. 
107. 

One  partner  gave  another,  whose  interest  he  purchased,  a  bond  and 
security  to  relieve  him  from  the  debts  of  the  firm.  The  outgoing  partner 
having  been  discharged  under  the  Bankrupt  Act  of  1841,  could  still 
enforce  the  obligation  to  pay  the  partnership  debts,  and  so  also  could  the 
creditors  for  whose  benefit  the  obligation  was  given.  Hood  v.  Spencer 
et  al.,  4  McLean,  168;  12  Fed.  Cas.  459. 


74  The  Bankkuptoy  Law. 

The  assignee  sought  to  have  the  proof  of -a  claim  expunged  on  the 
ground  that  the  alleged  creditor  was  a  partner  of  the  bankrupt.  In  deny- 
ing the  motion,  the  court  said  that  one  could  be  heard  to  deny  his  mem- 
bership of  a  fii-m  In  the  absence  of  conduct  so  open  and  notorious  that 
all  the  creditors  believed  him  to  be  a  partner,  and  gave  credit  to  the  firm 
on  the  strength  of  that  belief.    In  re  Goold,  2  Hask.  34;  10  Fed.  Cas.  761. 

The  creditors  of  a  firm  have  the  first  right  to  be  paid  out  of  the  part- 
nership estate,  and  equity  will  give  relief  against  an  attempt  to  defeat 
this  right  by  transferring  all  the  partnership  assets  to  one  member  of  the 
firm.    Collins  et  al.  v.  Hood,  4  McLean,  186;  6  Fed.  Cas.  129  (1846). 

A  partnership  debt  is  not  entitled  to  a  dividend  out  of  the  individual 
assets  until  the  individual  debts  are  paid  in  full.  In  re  HoUlster,  a  Fed. 
Rep.  452. 

The  bankrupt  law  provides  for  the  primary  payment  of  firm  debts  out 
of  the  partnership  assets,  and  of  Individual  debts  out  of  the  separate 
assets  of  each  partner;  but  it  does  not  'prescribe  any  rule  or  furnish  any 
method  for  ascertaining  the  character  of  distributable  assets.  In  re  Zug, 
16  N.  B.  K.  280';  30  Fed.  Gas.  947  (1877). 

In  this  case  title  to  real  estate  used  for  firm  purposes  and  purchased 
with  the  firm's  money  w-as  held  in  the  proportion  of  four-fifths  in  one 
partner  and  one-fifth  in  another.  Held,  that  agreeably  to  the  law  of 
Pennsylvania  relating  to  real  estate,  the  proceeds  of  the  land  in  question 
should  be  regarded  as  assets  of  the  individual  members  of  the  firm,  and 
should  be  distributed  accordingly.    Ibid. 

It  was  decided  under  the  Act  of  1867  that  where  partners  filed  separate 
petitions,  separate  creditors  have  the  first  right  in  the  distribution  of  the 
separate  assets,  whether  there  were  any  partnership  effects  or  not.  In  re 
Morse,  13  N.  B.  B.  376;  17  Fed.  Cas.  852. 

Under  the  Act  of  180O  a  creditor  of  a  partnership  could  prcfve  a  joint 
debt  under  a  separate  commission  against  one  of  the  partners  and  re- 
ceive a  full  dividend.  The  court  further  held  that  the  joint  creditor 
could  only  be  prevented  from  receiving  his  full  dividend  until  the  joint 
effects  were  exhausted  by  the  intervention  of  equity.  Tucker  v.  Oxley, 
5  Granch,  35. 

Justice  Story  used  this  language:  "  The  whole  fund  in  court  belongs 
to  the  separate  estate  of  the  bankrupt  W.,  and,  of  course,  upon  general 
principles  of  law  as  well  as  the  positive  enactment  of  the  fourteenth 
section  of  the  Bankrupt  Act  of  1841,  chapter  9,  the  whole  is  in  the  first 
Instance  to  be  applied  to  the  payment  of  the  debts  due  from  him,  and 
proved  by  his  separate  creditors;  and  as  there  is  no  surplus,  joint  cred- 
itors of  the  firm  of  which  W.  was  a  partner  can  take  nothing."  In  re 
Williams,  5  Law  Rep.  402;  29  Fed.  Cas.  1321  (18421. 

Three  of  four  partners  settled  by  composition  with  the  creditors  of  the 
firm.  The  fourth  member  was  afterward,  in  another  proceeding,  ad- 
judged a  bankrupt.  It  was  held  that  the  firm  creditors  were  not  entitled 
to  share  in  the  assets  of  the  bankrupt  on  a  footing  with  separate  creditors, 
except  as  to  the  firm's  paper  on  which  the  bankrupt  was  individually 
bound  as  indorser.    In  re  Adams,  29  Fed.  Rep.  843. 


Bankkupts.  75 

M.  and  S.  were  partners  in  a  store.  M.  purchased'  the  Interest  of  S., 
Including  bills  receivable,  and  agreed  to  pay  the  debts  of  the  firm.  For 
more  than  a  year  thereafter  he  continued  the  business,  buying  a  new 
stock,  which  was  mingled  with  the  old,  and  selling  from  both.  He  was 
then  adjudged  a  bankrupt.  The  court  held  that  the  bankrupt's  effects 
were  to  be  regarded  as  his  separate  estate  and  subject  to  the  payment 
of  his  Individual  debts  before  any  payments  could  be  made  on  account 
of  the  old  firm.    In  re  Montgomery,  3  Ben.  567;  17  Fed.  Cas.  618. 

The  assets  of  a  partner  who  continued  to  conduct  the  business  under 
the  firm  name  after  dissolution,  with  the  consent  of  his  copartner,  will 
be  treated  as  joint  assets.    In  re  Morse,  13  N.  B.  E.  376;  17  Fed.  Gas.  852. 

The  surviving  member  of  a  firm  continued  to  carry  on  the  business  after 
the  death  of  his  copartner,  and  with  the  consent  of  the  latter' s  admin- 
istrators. After  continuing  the  business  for  some  time,  he  was  adjudged 
a  bankrupt,  and  an  assignee  appointed  to  take  possession  of  the  property. 
It  was  held  that  the  creditors  whose  claims  had  accrued  before  and  after 
the  death  were  entitled  to  share  pro  rata  in  the  funds  in  the  hands  of  the 
assignee;  also  that  the  administrators  might  prove  against  the  estate  of 
the  surviving  partner  any  claim  they  might  have  for  the  interest  of  the 
decedent  in  the  copartnership.  In  re  Mills,  11  N.  B.  R.  74;  17  Fed.  Cas. 
894. 

Where  the  members  of  a  firm  after  dissolution  continue  to  treat  each 
other  as  partners,  such  a  dissolution  can  have  no  effect  upon  the  rights 
of  the  creditors.    In  re  McFarland,  10  N.  B.  R.  31;  16  Fed.  Cas.  89. 

When  the  business  of  a  dissolved  partnership  is  continued  in  the  firm 
name  without  change,  and  no  notice  is  given  of  the  dissolution,  the  prop- 
erty of  the  partnership  will  be  treated  in  bankruptcy  as  assets  of  the  firm. 
In  re  Tomes  et  al.,  19  N.  B.  R.  36;  24  Fed.  Cas.  24. 

A  bankrupt  firm  had  advanced  money  to  an  individual  member  beyond 
his  share  of  the  capital.  The  court  allowed  the  assignee  in  bankruptcy  to 
prove  the  claim  of  the  firm  against  his  separate  estate,  but  restrained  the 
assignee  from  applying  any  portion  of  his  separate  estate  to  the  payment 
of  the  firm  debt  until  all  his  separate  creditors  were  fully  satisfied.  In 
re  McLean  et  al.,  15  N.  B.  R.  333;  16  Fed.  Cas.  240. 

Two  of  the  members  of  a  firm  had  received  its  assets  and  assumed  its 
debts.  The  creditor  proved  his  claim  in  bankruptcy  against  these  mem- 
bers of  the  firm,  and  shared  In  the  dividends  from  their  estate.  He  was 
allowed  to  prove  the  balance  of  his  claim  against  the  other  partner  in 
bankruptcy,  and  share  equally  with  the  other  creditors  of  the  latter.  In 
re  Pease,  13  N.  B.  R.  168;  19  Fed.  Cas.  68. 

A  partner  having  sued  for  a  dissolution  of  the  firm,  and  proceedings  in 
bankruptcy  having  been  begun  against  the  firm,  the  partner  could  only 
claim,  on  the  dissolution,  his  individual  property,  which  would  pass  to 
the  assignee  for  the  payment  of  his  personal  debts.  In  re  Clark  et  al.,  4 
Ben.  88;  5  Fed.  Cas.  835. 

Where  all  the  partners  are  the  same,  and  they  carry  on  the  same  busi- 
ness under  different  partnership  names,  they  are  the  same  firm,  and  the 


76  The  Bankkuptcy  Law. 

assets  of  both  nominal  firms  are  equally  applicable  to  the  payment  of  all 
creditors.    In  re  Williams  et  al.,  3  Woods.  493;  29  Fed.  Cas.  1329. 

Though  the  English  courts  have  ruled  to  the  contrary,  it  was  held  in 
this  country  under  the  Act  of  1841  that  where  a  firm  and  the  several 
members  thereof  were  declared  bankrupt,  a  creditor  who  held  a  bill  of 
exchange  drawn  by  the  firm  and  indorsed  by  one  of  the  partners  could 
share  in  dividends  both  from  the  joint  estate  of  the  firm  and  the  separate 
estate  of  such  partner.  In  re  Farnum  et  al.,  6  Law  Rep.  21;  8  Fed.  Cas. 
1057  (1843). 

One  of  four  partners  paid  the  entire  indebtedness  of  the  firm.  Two  of 
the  other  partners  were  insolvent,  and  the  third  was  in  bankruptcy.  The 
partner  who  had  paid  the  firm's  debts  was  allowed  to  prove  one-half  of 
the  amount  paid  against  the  bankrupt  partner.  In  re  Dell,  6  Saw.  344;  7 
Fed.  Cas.  415. 

The  holder  of  a  draft  drawn  by  one  firm  and  accepted  by  another, 
where  both  were  adjudged  bankrupts,  cannot  share  equally  with  the 
individual  creditors  in  the  separate  assets  of  one  who  was  a  partner  of 
both  firms.    In  re  Dunkerson  et  al.,  4  Biss.  277;  8  Fed.  Cas.  54. 

"  Although,  in  the  distribution  of  the  general  assets  of  a  bankrupt,  the 
partnership  assets  are  to  be  first  applied  to  the  partnership  debts,  and  the 
individual  assets  of  any  separate  partner  first  applied  to  his  individual 
debts,  according  to  the  terms  of  the  bankrupt  law,  yet  when  a  judgment 
has  been  obtained  by  a  partnership  firm  against  the  members  of  a  con- 
cern, such  judgment  operates  as  a  several  lien  against  the  real  estate  of 
«ach  partner,  and  if  prior  in  point  of  time,  a  judgment  obtained  against 
an  individual  creditor  of  such  partner  is  to  be  preferred  to  such  subse- 
quent judgment;  but  the  court  is  further  of  the  opinion  that  when  such 
partnership  creditor  can  get  satisfaction  of  any  part  of  said  judgment 
out  of  the  partnership  assets,  the  pro  rata  distribution  to  which  such 
partnership  creditor  is  entitled  out  of  the  partnership  fund  shall  be  first 
applied  as  a  credit  on  said  judgment  against  the  separate  partner,  in 
relief  of  the  fund  of  such  separate  partner  for  the  benefit  of  the  separate 
creditors."    In  re  Lewis,  2  Hughes,  320;  15  Fed.  Cas.  455. 

Where  the  individual  creditor  of  two  partners  obtains  separate  judg- 
ments against  each,  and  under  executions  thereon  purchases  the  interest 
of  each  in  the  partnership  before  the  commencement  of  proceedings  in 
bankruptcy,  it  was  held  that  the  right  of  the  assignee  in  bankruptcy  of 
the  partnership  was  superior  to  that  of  the  execution  creditor,  and  that 
the  joint  debts  of  the  partnership  had  priority  and  must  be  first  paid  out 
of  the  partnership  property.  Osborne  v.  McBride,  16  N.  B.  R.  '>t-  18  Fed 
Oas.  842  (1876). 

A  firm  consisting  of  two  partners  dissolved  the  partnership  and  subse- 
quently formed  another  partnership.  It  was  held  by  Judge  Blatchford 
that  creditors  of  the  first  partnership  were  not  entitled  to  prove  their 
debts  against  the  subsequent  bankrupt  firm.  Debts  against  the  old  dis- 
solved firm  are  debts  against  each  partner  separately,  and  are  not  debts 
against  the  subsequent  copartnership.    See  section  5121,  R.  S.,  title  "  Bank- 


Bankrupts.  77 

ruptcy  "  of  the  Act  of  1867.  In  re  Nims,  10  Blatchf.  439;  18  Fed.  Cas. 
255. 

It  was  held  that  under  the  laws  of  Illinois  a  husband  and  wife  might 
be  partners  in  business.  In  the  case  of  such  a  firm,  the  joint  creditors 
are  entitled  to  be  paid  out  of  the  partnership  assets  in  preference  to  the 
individual  creditors  of  the  husband.  In  re  Kinliead,  3  Biss.  405;  14  Fed. 
Cas.  599. 

Where  one  member  of  a  firm  has  no  individual  debts,  creditors  of  the 
firm  are  entitled  to  his  individual  assets,  and  also  to  appear  in  opposition 
to  a  discharge.    In  re  Leavitt,  1  Hasli.  194;  15  Fed.  Cas.  122. 

Two  merchants  united  their  stocli  of  goods  and  agreed  that  their 
separate  debts  should  be  assumed  by  the  firm  thus  organized.  Subse- 
quently they  became  banlirupt.  It  was  held  that  a  separate  creditor  who 
had  not  consented  to  the  arrangement,  could  not  prove  his  claim  against 
the  joint  estate.    In  re  Isaacs  et  al.,  3  Saw.  35;  13  Fed.  Cas.  148. 

Separate  creditors  are  not  entitled  to  interest  on  their  claims  after 
adjudication  as  against  joint  creditors.  In  re  Benson  et  al.,  16  N.  B.  R. 
75;  3  Fed.  Cas.  255.  (Following  the  supreme  court  of  Massachusetts  in 
Thomas  v.  Mlnot,  10  Gray,  263.). 

The  interest  of  members  of  a  firm  individually  is  only  in  the  surplus 
after  the  payment  of  the  partnership  debts.  In  re  Oorbett,  5  Saw.  206; 
6  Fed.  Cas.  528. 

A  creditor  of  a  firm  cannot  participate  in  the  individual  assets  of  a 
bankrupt  partner  until  his  separate  creditors  are  paid,  if  the  other  part- 
ners are  solvent.    In  re  Dunham,  1  Hasli.  495;  8  Fed.  Cas.  35. 

All  the  debts  of  a  partnership  must  be  paid  before  a  member  of  the 
firm  can  claim  payment  of  a  debt  that  accrued  to  him  in  the  course  of  the 
business  of  the  copartnership.  Cory  v.  Clark,  2  N.  J.  Law  J.  122;  6  Fed. 
Gas.  606. 

The  assets  of  a  firm  will  be  applied  to  the  payment  of  its  debts  without 
regard  to  the  proportion  in  which  the  several  partners  have  contributed 
to  its  capital.    In  re  Low  et  al.,  11  N.  B.  K.  221;  15  Fed.  Cas.  1015 

A  partnership  was  formed  between  a  father  and  his  infant  son.  The 
father  furnished  the  stock  in  trade,  and  the  son  was  to  contribute  his 
services,  and  each  was  to  have  a  half  interest.  The  original  stock  being 
exhausted,  new  goods  were  purchased.  The  court  held  that  the  new 
stock  could  not  be  seized  by  the  father's  creditors,  but  must  be  applied 
to  the  debts  of  the  firm.    In  re  Minor,  11  Fed.  Rep.  406. 

D.  >vas  a  member  of  the  firms  of  D.  &  Co.  and  B.  &  D.  The  debts  of 
the  former  firm  exceeded  its  assets,  but  D.  owned  property  in  excess  of 
his  personal  debts.  B.  &  D.  owed  a  bank  over  $16,000.  The  court  ordered 
that  the  distribution  be  made  as  follows:  That  the  personal  debts  of  D. 
be  paid  out  of  his  individual  assets;  that  the  joint  assets  of  D.  &  Co.  be 
distributed  pro  rata  to  the  creditors  of  the  firm,  and  that  the  individual 
assets  of  D.,  after  satisfying  his  personal  debts,  should  be  distributed 
among  all  the  creditors  who  had  proved  their  claims  and  to  whom  D.  at 
the  time  of  the  filing  of  the  petition  in  bankruptcy  was  liable  as  a  mem- 
ber of  either  firm.    In  re  Dunkerson  et  al.,  4  Biss.  323;  8  Fed.  Cas.  55. 


78  The  Bankettptcy  Law. 

One  partner  sold  out  his  interest  to  another  and  assumed  the  firm  debts. 
He  continued  the  business,  and  added  to  his  stock  by  purchases.  Pro- 
ceedings in  banlsruptcy  having  been  commenced,  it  was  held  that  the 
joint  creditors  of  the  firm  should  share  equally  with  the  individual  cred- 
itors without  showing  that  they  had  first  exhausted  the  personal  estate 
of  the  retiring  partner.    In  re  Rice,  9  N.  B.  R.  373;  20  Fed.  Cas.  654. 

When  the  assets  of  a  bankrupt  firm  are  absorbed  in  the  payment  of 
costs,  joint  and  separate  creditors  must  share  equally  in  the  separate 
assets  of  the  several  partners.  In  re  McEwen  et  al.,  6  Biss.  294;  16  Fed. 
Cas.  82. 

The  members  of  a  firm  having  been  adjudged  bankrupts,  and  a  creditor 
holding  their  joint  bond  having  proved  his  claim  against  them  separately 
and  not  against  the  firm,  the  assets  of  the  partnership  not  being  sufficient 
to  pay  its  debts,  it  was  held  that  the  creditor  could  receive  a  dividend 
out  of  the  separate  assets  of  the  individual  bankrupts.  In  re  Bigelow  et 
al.,  3  Ben.  146;  3  Fed.  Cas.  345. 

Creditors  of  a  firm  having  a  judgment  against  the  two  members  of  the 
firm  jointly  are  not  entitled  to  dividends  in  bankruptcy  against  the 
separate  estate  of  each  bankrupt  pari  passu  with  the  separate  creditors 
of  each  bankrupt.    In  re  Berrian  et  al.,  6  Ben.  297;  3  Fed.  Cas.  283. 

C.  had  received  a  discharge  on  proceedings  in  involuntary  bankruptcy 
against  him  alone.  C.  and  H.,  as  a  firm,  had  given  a  promissory  note  in 
the  firm  name.  A  suit  was  commenced  against  them  on  the  note,  and  C. 
set  up  his  discharge  in  defense.  It  was  held  that  if  there  was  no  partner- 
ship property,  the  discharge  of  C.  released  him  from  the  debts  of  the  firm; 
otherwise  not.  Crompton  et  al.  v.  Oonkling,  9  Ben.  225;  6  Fed.  Cas.  848; 
Crompton  v.  Conkling  et  al.,  15  N.  B.  R.  417;  6  Fed.  Gas.  850. 

The  firm  had  been  dissolved,  and  one  of  the  partners  agreed  to  pay  all 
of  its  debts.  The  partners  were  put  into  bankruptcy  separately,  and 
there  were  no  joint  assets.  Held,  that  the  firm  creditors  and  the  creditors 
of  the  partner  who  had  assumed  the  debts  were  entitled  to  share  equally 
in  the  estate  of  such  partner.    In  re  Downing,  1  Dill.  33;  7  Fed.  Cas.  1005. 

The  bankrupt's  personal  debts  had  been  contracted  on  the  strength  of 
property  invested  in  a  partnership.  The  firm  conveyed  its  property  by  a 
deed  of  trust  to  secure  its  indebtedness,  and  the  bulk  of  the  property  was 
sold,  but  the  partnership  was  not  formally  dissolved.  Later,  the  bank- 
rupt filed  his  petition.  The  court  decided  that  the  individual  and  copart- 
nership creditors  of  the  bankrupt  should  share  equally.  In  re  Goedde  et 
al.,  6  N.  B.  R.  295;  10  Fed.  Cas.  524. 

Where  a  firm  received  the  consideration  for  a  note,  but  it  was  signed 
by  the  partners  individually,  it  was  held  that  the  holders  were  entitled 
to  dividends  out  of  their  separate  estates.  In  re  Bucyrus  M.  Co.,  5  N.  B. 
R.  303;  4  Fed.  Cas.  584. 

Where  there  are  no  firm  assets,  and  the  partners  are  all  insolvent,  the 
debts  of  the  firm  and  of  the  individual  members  can  be  proved  and  both 
classes  of  creditors  will  share  equally  in  the  estate.  In  re  Knight  2 
Biss.  518;  14  Fed.  Cas.  752. 


Bankeupts.  79 

"  When  a  debt  from  one  partner  to  the  firm  was  incurred  by  the  con- 
sent or  privity  of  the  other  partners,  proof  of  the  joint  creditors  against 
the  separate  estate  will  not  be  admitted  in  a  court  of  bankruptcy."  In  re 
McEwen  et  al.,  6  Biss.  294;  16  Fed.  Cas.  82. 

The  claimant  had  obtained  a  divorce  from  her  husband,  and  he  and  his 
partner  had  executed  a  bond  for  the  payment  of  alimony.  It  was  held 
that  she  was  not  entitled  to  be  paid  from  the  firm  assets  as  against  firm 
creditors.    In  re  Roddin  et  al.,  6  Biss.  S77;  20  Fed.  Cas.  1084. 

J.  bought  the  interest  of  his  partner  in  the  firm  of  J.  &  B.,  which  was 
indebted  for  some  of  the  goods  so  sold  to  J.  The  firm  had  no  assets. 
Proceedings  of  involuntary  bankruptcy  having  been  commenced  against 
J.,  it  was  held  that  the  creditors  of  the  partnership  were  entitled  to  share 
on  equal  terms  with  the  individual  creditors.  In  re  Jewett,  1  N.  B.  R. 
491;  13  Fed.  Cas.  583.  In  a  later  case  growing  out  of  the  same  bank- 
ruptcy, it  was  held  that  B.  could  not  receive  dividends  from  the  assignee 
on  the  notes  which  he  received  for  his  interest  in  the  iBrm,  until  all  the 
partnership  debts  were  paid.  In  re  Jewett,  1  N,  B.  R.  495;  13  Fed.  Oas. 
594. 

The  estate  of  the  firm  was  exhausted  in  the  expenses  incurred  in  col- 
lecting it.  The  court  decided,  under  section  36  of  the  Act  of  1867,  that 
the  firm  creditors  could  share  equally  with  the  individual  creditors  in  the 
individual  estate.    In  re  Slocum  et  al.,  22  Fed.  Cas.  328. 

The  rule  that  firm  assets  shall  be  first  applied  to  the  payment  of  firm 
debts,  and  individual  assets  to  the  payment  of  individual  debts,  except 
that  when  there  are  no  firm  assets  the  firm  creditors  shall  share  equally 
with  individual  creditors  in  the  individual  assets,  applies  where  petitions 
have  been  filed  against  the  partners  separately.  When  firm  assets  are 
only  sufficient  to  pay  the  costs  and  expense's  of  the  proceeding,  firm 
creditors  have  a  right  to  share  with  individual  creditors  under  the  above 
rule;  but  neglect  by  the  firm  creditors  to  avail  themselves  of  a  fund 
whereby  it  was  dissipated  deprives  them  of  this  right.  In  re  Litchfield, 
5  Fed.  Rep.  47. 

While  joint  creditors  have  priority  over  separate  creditors  in  firm 
assets,  and  separate  creditors  over  joint,  as  to  the  individual  assets  of 
partners,  yet  when  there  are  no  partnership  assets,  the  firm  creditors 
are  entitled  to  share  in  the  separate  assets;  and  where  one  partner  has 
assumed  the  firm  debts  the  firm  creditor  may  share  in  his  estate  equally 
with  separate  creditors.    In  re  Lloyd,  22  Fed.  Rep.  28. 

Construing  the  Act  of  1867  (sections  5075  and  5121,  R.  S.),  Judge  Deady 
held  that  the  property  of  a  partnership  is  to  be  first  applied  to  a  payment 
of  the  partnership  debts,  and  the  property  of  each  partner  to  the  pay- 
ment of  his  individual  debts.    In  re  Estes  et  al.,  3  Fed.  Rep.  134. 

Section  14  of  the  Act  of  1841  was  held  to  be  simply  the  rule  of  equity 
as  to  the  distribution  of  the  assets  of  a  partnership,  and  the  individual 
members.    In  re  Warren,  2  Ware,  322;  29  Fed.  Cas.  266  (1847). 

Held,  under  the  Act  of  1867,  that  the  rule  that  the  property  of  a  firm 
must  be  applied  to  the  partnership  debts,  and  the  separate  estate  of  the 


80  The  Bankbuptcy  Law, 

partners  to  their  indlviclual  debt.,  only  applies  when  the  joint  estate  as 
well  as  the  separate  estate  is  before  the  court  for  distribution.  U.  S.  y. 
Lewis  at  al.,  13  N.  B.  R.  33;  26  Fed.  Cas.  920. 

In  proceedings  against  a  partnership,  joint  and  individual  assets  are 
separate  funds  for  the  payment  of  joint  and  personal  creditors  respectively. 
Where  there  are  balances  of  the  separate  estates,  they  should  be  added 
to  the  joint  estate  for  the  payment  of  joint  creditors,  and  after  these 
have  been  paid,  if  any  balance  remains,  it  should  be  divided  among  the 
partners.    In  re  South  Boston  Iron  Co.,  4  Cliff.  343;  22  Fed.  Cas.  812. 

Held,  under  the  Act  of  1867,  that  firm  creditors  cannot  share  in  the 
individual  estate  of  bankrupts  when  there  are  partnership  assets.  In  re 
Smith  et  al.,  13  N.  B.  R.  500;  22  Fed.  Cas.  402. 

A  firm  "  jointly  and  severally  "  guaranteed  the  payment  of  an  obbga- 
tion.  On  the  question  whether  it  could  be  proved  against  the  joint  estate 
in  bankruptcy,  the  court  said:  "  The  creditors  are  at  liberty,  therefore,  to 
go  to  proof  to  show  the  liability  of  the  bankrupt  to  the  creditor  to  have 
been  of  a  partnership  character,  and  proceedings  on  the  dividend  will 
be  stayed  until  the  report  of  the  commissioner  and  the  judgment  of  the 
court  thereon."  Ex  parte  Miller,  1  N.  Y.  Leg.  Obs.  38;  17  Fed.  Cas.  292 
(1842). 

Act  of  1841  construed.  The  provision  devoting  joint  assets  to  firm 
creditors  and  separate  estate  to  separate  creditors  was  held  not  to  apply 
where  there  were  no  joint  assets.    In  re  West,  30  Fed.  Rep.  203. 

If  there  is  any  balance  of  partnership  assets  after  deducting  its  share 
of  the  costs  of  the  proceedings,  the  partnership  creditors  cannot  share 
pari  passu  with  the  individual  creditors  in  the  distribution  of  the  separate 
estates.    In  re  Blummer,  12  Fed.  Rep.  489. 

Where  there  are  assets  of  a  firm,  the  adjudication  of  a  member  of  the 
copartnership  does  not  discharge  him  from  the  firm  liabilities.  In  re 
Plumb,  9  Ben.  279;  19  Fed.  Cas.  886. 

Real  estate  purchased  with  partnership  funds  is  treated  as  personal 
property,  and  is  subject  to  the  payment  of  firm  debts  as  against  a  judg- 
ment creditor  of  an  individual  member  of  the  firm.  Marrett  v.  Murphey 
et  al.,  11  N.  B.  R.  131;  16  Fed.  Cas.  782. 

Section  36  of  the  Act  of  1867  contemplated  that  assets  were  to  be 
marshaled  between  the  joint  and  separate  creditors  of  partners  only  when 
there  were  joint  and  separate  assets,  and  proceedings  had  been  instituted 
against  the  firm  and  the  individual  members.  In  re  Downing,  1  Dill.  33; 
7  Fed.  cas.  1005. 

A  partnership  desiring  an  extension  of  time,  the  individual  members  of 
the  firm  agreed  to  convey  land  to  the  creditor,  the  same  to  be  sold  and 
applied  to  the  debt.  The  firm  becoming  bankrupt,  it  was  held  that  the 
agi-eement  was  simply  a  security  for  the  original  firm  debt,  and  that  the 
debt  was  provable  against  the  firm,  and  was  not  an  individual  debt. 
Gauss  V.  Schrader,  48  Fed.  Rep.  816. 

Where  there  are  both  joint  and  separate  debts  proved  on  a  separate 
petition,  the  latter  must  be  paid  first.  In  re  Byrne,  1  N.  B.  R.  464;  4  Fed. 
Gas.  951. 


Bankrupts.  81 

Where  there  are  firm  assets,  the  creditors  of  a  partnership  cannot  be 
allowed  to  prove  their  debts  against  the  separate  estate  of  a  partner;  and 
this  is  true  without  regard  to  the  amount  of  the  assets,  or  how  they  were 
produced.  So  held  under  the  Act  of  1841.  In  re  Marwlcli,  8  Law  Rep. 
169;  16  Fed.  Cas.  929  (1845). 

The  holder  of  commercial  paper  signed  by  a  firm  and  indorsed  by  one 
of  the  members  can  prove  his  debt  in  bankruptcy  against  both  the  firm 
and  the  individual  indorser,  and  share  in  the  dividends  of  each  estate. 
Emery  et  al.  v.  Canal  N.  Banlv,  3  Cliff.  507;  8  Fed.  Cas.  644. 

A  firm  creditor  is  not  estopped  from  asserting  the  liability  of  a  special 
partner  by  an  adjudication  against  the  firm  and  the  members  in  whose 
name  the  firm  conducted  its  business.  Abbendroth  v.  Van  Dolsen,  131 
V.  S.  66. 

An  accommodation  note  indorsed  by  one  member  of  a  partnership  for 
the  benefit  of  a  third  person  without  the  linowledge  or  consent  of  the 
other  partner  cannot  be  proved  up  against  the  firm.  In  re  Irving  et  al., 
17  N.  B.  R.  22;  13  Fed.  Cas.  110. 

A  party  purchased  a  note  of  a  firm,  and  afterward  proved  it  as  a  claim 
in  bankruptcy  against  the  signers  alone.  It  was  held  that  he  could  not 
recover  from  secret  partners  who  belonged  to  the  firm  without  his 
knowledge  at  the  time  of  the  purchase.  In  re  Munn,  3  Biss.  442;  17  Fed. 
Cas.  989. 

A  decree  had  been  entered  against  a  firm  upon  a  joint  obligation  as 
sureties  for  a  debt,  and  it  was  paid  out  of  the  firm  assets.  Later,  the 
firm  was  dissolved,  and  one  of  the  partners  was  indebted  to  another. 
The  debtor  partner  having  gone  into  bankruptcy,  the  solvent  partner 
sought  to  be  subrogated  to  the  rights  of  the  creditor  of  the  firm  under 
the  decree  mentioned  against  the  Individual  estate  of  the  bankrupt  part- 
ner. Held,  that  he  could  not  be  subrogated.  In  re  Smith,  16  N.  B.  R. 
113;  22  Fed.  Cas.  408. 

The  bankrupts  carried  on  business  in  different  places  under  different 
names.  Held,  that  the  two  firms  were  to  be  treated  as  one;  that  no 
notice  was  to  be  taken  of  the  indebtedness  of  one  firm  to  the  other,  and 
that  the  proceeds  of  the  separate  estates  of  the  partners,  after  paying 
their  individual  debts,  were  to  be  added  to  the  joint  stock.  In  re  Vetter- 
leln  et  al.,  5  Ben.  311;  28  Fed.  Cas.  1170. 

In  a  case  where  a  trust  fund  had  been  invested  in  a  partnership  busi- 
ness, the  copartner  of  the  executor  having  knowledge  of  the  source  of 
the  money,  the  court  used  this  language:  "When  the  copartnership 
as  such  received  and  used  the  fund  with  full  knowledge  of  its  character, 
the  partnership  became  liable  therefor.  The  creditors  or  beneficiaries 
could,  therefore,  pursue  one  or  the  other;  the  only  doubtful  proposition  is 
whether  they  can  pursue  both."  It  was  thereupon  held  that  the  parties 
entitled  to  the  fund  could  prove  their  debts  against  the  partnership, 
notwithstanding  they  had  already  proved  it  against  the  executor.  In 
re  Tesson  et  al.,  9  N.  B.  B.  378;  23  Fed.  Cas.  866. 

6. 


83  The  Bankruptcy  Law. 

Judge  Bond  held  that  a  party  holding  the  note  of  a  firm  indorsed  by 
one  of  its  members  may  prove  his  claim  against  both,  and  elect  out 
of  which  fund  it  will  be  paid.  Stephenson  v.  Jackson,  2  Hughes,  204; 
22  Fed.  Cas.  1307 

Where  the  consideration  for  a  note  is  treated  as  copartnership  funds, 
it  is  a  liability  of  the  firm,  though  signed  by  the  members  with  their 
individual  names.    In  re  Thomas  et  al.,  8  Biss.  139;  23  p-ed.  Oas.  923. 

Under  the  Law  of  1867  a  joint  creditor  could  prove  his  debt  against 
the  separate  estate  of  the  bankrupt,  vote  for  assignee,  examine  the 
debtor  and  appear  in  opposition  to  his  discharge.  He  could  not,  however, 
participate  in  the  distribution  of  separate  assets  as  against  separate 
creditors.    Wilklns  v.  Davis,  2  Low.  511;  29  Fed.  Cas.  1348. 

[For  notes  on  the  jurisdiction  of  courts  of  bankruptcy  over  partnerships  as  dependent  on 
residence  or  place  of  business,  see  section  S.] 

Exemptions. 
§  6.  Exemptions  of  Bankrupts. —  (a.)  This  Act  shall  not  affect  the 
allowance  to  bankrupts  of  the  exemptions  which  are  prescribed  by  the 
State  laws  in  force  at  the  time  of  the  filing  of  the  petition  in  the  State 
wherein  they  have  had  their  domicile  for  the  six  months  or  the  greater 
portion  thereof  immediately  preceding  the  filing  of  the  petition. 

Homesteads. 

The  rights  of  parties  to  a  proceeding  in  bankruptcy  are  fixed  as  of 
the  date  of  the  adjudication;  and  if  no  homestead  exemption  could  have 
been  allowed  at  that  time,  the  bankrupt  could  not  claim  any  by  virtue 
of  subsequent  laws.    In  re  Kerr  et  al.,  9  N.  B.  R.  566;  14  Fed.  Cas.  386. 

The  right  to  a  homestead  exemption  may  be  forfeited  by  fraud.  So 
where  merchants  purchased  an  additional  stock  of  goods,  and  then 
traded  their  whole  stock  for  a  house  and  lot,  it  was  held  that  they  could 
not  claim  the  premises  as  a  homestead  as  against  the  assignee  in  bank- 
ruptcy.   Pratt  et  al.  v.  Barr,  5  Biss.  36;  19  Fed.  Cas.  548. 

The  assignee  in  bankruptcy  was  ordered  to  intervene  in  a  proceeding 
whereby  the  bankrupt  had  caused  a  homestead  to  be  set  apart  to  his 
family  a  few  days  before  filing  a  petition,  from  which  order  an  appeal 
was  then  pending.  It  was  further  decided  that  in  the  meantime  the 
assignee  could  not  take  possession  of  the  property.  In  re  Moseley  et  al., 
8  N.  B.  R.  208;  17  Fed.  Cas.  886. 

Property  exempted  as  a  homestead  is  not  subject  to  the  jurisdiction 
of  a  court  in  bankruptcy,  and  those  who  have  claims  against  it  must 
prosecute  them  in  the  state  courts.  This  rule  is  not  affected  by  the  fact 
that  the  bankrupt  had  waived  his  right  to  the  exemption.  In  re  Bass, 
3  Woods,  382;  2  Fed.  Cas.  1004. 

Where  an  assignee  set  aside  certain  property  of  the  bankrupt  as  a 
homestead,  and  the  bankrupt  was  not  entitled  to  the  exemption,  the 
assignee  was  held  responsible  for  his  failure  to  sell  the  property  for  the 


Bankrupts.  83 

benefit  of  the  creditors.    In  re  Jackson  et  al.,  2  N.  B.  R.  508;  13  Fed   Cas 
■M3. 

Three  days  before  a  bankrupt  firm  went  into  bankruptcy,  one  of  the 
partners  took  notes  belonging  to  it  and  with  them  purchased  a  home- 
stead. It  was  decided  that  he  could  not  retain  it  as  exempt.  In  re 
Boothroyd,  14  N.  B.  R.  223;  3  Fed.  Cas.  872. 

Where  a  creditor  of  the  bankrupt  was  proceeding  to  sell  certain  real 
estate  on  an  execution  issued  prior  to  the  bankruptcy,  the  district 
court  will  not  entertain  a  petition  for  an  order  setting  it  apart  as  a 
homestead,  and  an  injunction  against  the  sale  of  the  property  on  the 
execution.  The  remedy  of  the  bankrupt  is  in  the  state  courts.  In  re 
Hunt,  5  N.  B.  R.  499;  12  Fed.  Oas.  802. 

It  is  sufficient  if  a  bankrupt  claims  his  homestead  exemption  when 
the  assignee  applies  for  an  order  to  sell  the  property.  Bartholemew  v. 
West  et  al.,  2  Dill.  290;  2  Fed.  Cas.  963. 

Under  the  laws  of  the  state,  the  bankrupt  was  entitled  to  a  home- 
stead exemption  to  the  value  of  $500.  The  assignee  sold  the  farm  be- 
longing to  the  bankrupt,  free  from  the  homestead  right.  It  was  held 
that  the  bankrupt  was  entitled  to  $500  out  of  the  proceeds.  In  re  Beede, 
19  N.  B.  R.  68;  3  Fed.  Cas.  62. 

A  deed  in  which  the  wife  joined,  conveying  the  farm  where  the  bank- 
rupt resided,  was  set  aside  at  the  suit  of  the  assignee  In  bankruptcy 
as  a  fraud  upon  creditors.  It  was  held  that  the  giving  of  the  deed  did 
not  bar  the  right  of  the  wife  to  dower,  or  the  right  of  the  bankrupt  to 
his  homestead  exemption.  Cox  v.  Wilder  et  al.,  2  Dill.  45;  6  Fed.  Cas. 
684;  reversing  s.  c.  5  N.  B.  B,  443;  6  Fed.  Cas.  685. 

When  a  debtor  made  a  conveyance  which  was  afterward  set  aside  as 
a  preference  under  the  Bankruptcy  Act  of  1867,  it  was  held  that  the 
right  to  a  homestead  and  dower  both  revived.  In  re  Detert,  11  N.  B.  R. 
293;  7  Fed.  Cas.  545. 

It  was  held  under  section  14  of  the  Act  of  1867  that  the  bankrupt  is 
entitled  to  a  homestead  out  of  lands  mortgaged  by  him  to  secure  a  loan. 
In  re  Brown,  3  N.  B.  R.  250;  4  Fed.  Oas.  334. 

The  holder  of  a  note  waiving  the  exemption  of  a  homestead  must 
be  paid  out  of  the  proceeds,  if  the  homestead  has  been  set  apart  with- 
out notice.    In  re  Judkins,  2  Hughes,  401;  13  Fed.  Cas.  1193. 

Where  the  bankrupt's  right  of  homestead  in  the  property  on  which 
he  resides  is  cut  ofC  by  a  mortgage,  the  court  in  bankruptcy  can  order 
the  bankrupt  to  deliver  possession  to  the  purchaser  on  a  foreclosure  sale 
without  requiring  him  to  bring  a  suit  in  ejectment.  In  re  Betts,  4  Dill. 
93;  3  Fed.  Cas.  314. 

A  conveyance  by  the  bankrupt  of  property  occupied  as  a  homestead  to 
a  trustee  for  the  benefit  of  his  wife  was  void  as  against  the  creditors. 
The  court  held  that  it  was,  however,  good  as  between  the  husband  and 
wife,  and  that  the  latter  was  entitled  to  a  homestead  allowance  out  of  the 
proceeds.    Smith  v.  Kehr  et  al.,  2  Dill.  50;  22  Fed.  Cas.  584. 


84  The  Bankeuptcy  Law. 

The  humane  policy  of  the  exemption  laws  applies  in  bankruptcy. 
When,  therefore,  a  state  law  allows  a  money  exemption  In  lieu  of  home- 
stead, a  bankrupt  partner  should  be  allowed  the  same  out  of  the  assets 
of  a  bankrupt  partnership.  In  the  case  cited  District  Judge  Shuman 
gives  his  reasons  for  reversing  his  previous  rulings  on  the  question.  In 
re  Rupp,  4  N.  B.  R.  95;  21  Fed.  Oas.  215  (1870). 

The  right  of  the  wife  and  family  to  a  homestead  exemption  is  no  title, 
lien  or  incumbrance  upon  the  husband's  property  until  it  has  been  ap- 
propriated by  a  judgment.  Hence  jurisdiction  over  It  passes,  In  case 
of  bankruptcy  of  the  husband,  to  the  federal  court.  Woolfolk  v.  Murray, 
10  N.  B.  R.  540;  30  Fed.  Oas.  600  (1874). 

The  bankrupt  having  acquired  a  rural  homestead,  the  fact  that  the  land 
is  subsequently  included  within  the  limits  of  a  city  by  act  of  legislature 
cannot  affect  his  homestead  rights.  In  re  Young,  15  N.  B.  R.  205;  30 
Fed.  Gas.  835  (1876). 

A  creditor  having  objected  to  the  exemption  of  a  homestead  under  the 
laws  of  the  state  on  the  ground  that  it  exceeded  in  value  the  limitation 
of  the  statute,  the  court  ordered  it  to  be  sold,  the  surplus  in  value  above 
the  limitation  to  be  paid  Into  the  general  fund.  In  re  Watson,  2  N.  B.  R^ 
570;  29  Fed.  Gas.  421. 

Where  a  copartnership  is  insolvent,  or  is  possessed  of  assets  not  more 
than  adequate  for  the  payment  of  its  debts,  one  member  of  the  firm, 
by  retiring,  cannot  rightfully  withdraw  beyond  the  reach  of  creditors 
a  portion  of  the  assets  by  putting  them  in  the  shape  of  a  homestead.  A 
homestead  so  acquired  will  be  subjected  to  the  debts  of  creditors  in 
bankruptcy.    In  re  SauthofC,  16  N.  B.  R.  181;  21  Fed.  Gas.  542  (1877). 

The  wife  of  an  Insolvent  had  contracted  to  purchase  certain  property 
and  it  was  subsequently  conveyed  to  her.  Her  husband,  more  than  four 
months  before  the  filing  of  the  petition  in  bankruptcy,  furnished  $1,400 
as  part  of  the  purchase  price.  This  was  held  to  be  a  fraud  upon  his 
creditors.  Under  the  Act  of  1867,  in  a  suit  brought  by  the  assignee,  the 
husband  was  required  to  convey  to  him  his  interest  in  such  homestead, 
less  the  amount  that  he  was  authorized  by  law  to  invest  in  the  home- 
stead under  the  laws  of  the  state.  Johnson  v.  May  et  ux.,  16  N.  B.  R. 
425;  13  Fed.  Gas.  771. 

A  petitioner  in  voluntary  proceedings  had  sold,  prior  to  filing  his  peti- 
tion, a  homestead  that  was  exempt  under  the  laws  of  the  state.  It  was 
held  that  he  could  not  invoke  the  protection  of  the  Bankrupt  Act  in 
favor  of  the  vendee.    In  re  Everett,  9  N.  B.  R.  90;  8  Fed.  Gas.  906. 

Personal  property  which  is  subject  to  exemption  under  the  laws  of 
the  state  in  lieu  of  a  homestead  will  be  set  apart  to  the  bankrupt,  not- 
withstanding it  had  been  levied  upon  under  an  execution.  In  re  Peebles, 
2  Hughes,  394;  19  Fed.  Gas.  94. 

A  conveyance  by  a  bankrupt  and  wife  of  their  homestead  was  set 
aside  by  the  assignee  in  bankruptcy  as  fraudulent.  It  was  held  that  the 
conveyance  did  not  Impair  their  rights  to  the  homestead,  which  must  be 
recognized  In  the  proceedings  in  bankruptcy.  McFarland  v.  Goodman 
et  al.,  6  Biss.  Ill;  16  Fed.  Gas.  90. 


Bankrupts.  85 

Held,  under  the  Act  of  18C7,  that  the  assignee  should  Include  the  home- 
stead in  his  schedule  of  the  exempt  property.  In  re  Slnnett,  4  Saw.  250; 
22  Fed.  Oas.  228. 

A  creditor  may  enforce  his  lien  against  the  homestead  of  a  bankrupt 
without  respect  to  the  pendency  of  the  proceedings.    Ibid. 

When  a  homestead  right  may  be  lost  by  abandonment,  the  proof  of 
such  abandonment  must  be  clear  and  decisive.  Rix  v.  Gapitol  Banli,  2 
Dill.  367;  20  Fed.  Cas.  846. 

The  waiver  by  a  debtor  of  his  homestead  to  a  certain  creditor  does  not 
operate  in  favor  of  the  general  creditors.  In  re  Poleman,  5  Biss.  526;  19 
Fed.  Cas.  918. 

An  insolvent  sold  his  personal  property,  and  with  the  proceeds  paid 
a  mortgage  on  his  homestead;  nevertheless  it  was  held  under  the  laws 
of  California  that  he  might  claim  the  exemption  of  the  homestead 
against  the  assignee  in  banliruptcy.  In  re  Henliel,  2  Saw.  305;  11  Fed. 
Cas.  1124. 

The  Constitution  of  Florida  exempts  as  a  homestead  160  acres  of  land, 
not  in  an  incorporated  town  or  city,  without  any  limit  as  to  its  value. 
It  was  held  in  the  case  of  a  farmer  that  this  exemption  would  cover  his 
house  and  farm  to  the  limit  mentioned  in  area,  together  with  the  im- 
provements thereon;  but  did  not  embrace  tenement-houses  and  mills 
erected  on  a  portion  of  the  tract;  also  that  a  millowner  who  has  a  farm 
attached  to  his  mill  could  hold  his  residence  and  mill,  but  not  the  farm. 
Oreely  v.  Scott  et  al.,  2  Woods.  667;  10  Fed.  Cas.  1072. 

Judge  Ersliine,  of  the  district  court  of  Georgia,  affirmed  the  decision 
of  the  register,  as  follows:  "On  the  1st  of  June,  1868,  Dr.  William 
Taylor,  then  residing  in  a  house  in  Irwinton,  which  he  had  rented, 
having  as  his  family  Mrs.  Oarswell,  her  three  children  and  two  or  more 
hired  servants  which  were  hired  by  him  and  were  under  his  control, 
was  the  head  of  a  family,  and  as  he  still  continues  so  to  reside,  his  posi- 
tion as  head  of  the  family  still  continues."  Proceeding,  the  register  held 
that  he  was  entitled  to  an  exemption  of  fifty  acres  of  land  under  the  laws 
of  Georgia,  but  not  to  any  enlargement  of  his  exemption  on  account  of 
the  three  children  of  fllrs.  Oarswell.  In  re  Taylor,  3  N.  B.  K,  157;  23 
Fed.  Cas.  730. 

Held,  under  the  laws  of  Georgia,  that  a  bankrupt  could  not  claim  the 
exemption  of  a  homestead  as  against  a  mortgage  given  to  secure  the 
purchase  price.    In  re  Whitehead,  2  N.  B.  R.  599;  29  Fed.  Cas.  10.30. 

It  was  held  in  Illinois  that  where  the  homestead  of  a  bankrupt  was 
sold  under  a  mortgage,  the  assignee  in  bankruptcy  should  set  apart  to 
the  bankrupt  $1,000  in  cash  from  the  proceeds  after  paying  the  mort- 
gaged claim,  unless  the  property  was  susceptible  of  division  so  as  to 
set  apart  the  homestead.    In  re  Poleman,  5  Biss.  526;  19  Fed.  Cas.  918. 

Under  the  Constitution  of  Kansas,  it  was  held  that  property  occupied 
by  the  bankrupt  as  a  residence  did  not  pass  to  the  assignee,  and  that 
he  could  not  sustain  a  bill  to  set  aside  a  prior  mortgage  on  said  property, 
or  to  restrain  its  foreclosure  in  a  state  court.  Rlx  v.  Capitol  Bank,  2 
Dill.  367;  20  Fed.  Oas.  846. 


86  The  Bankhuptcy  Law. 

The  bankrupt  was  the  owner  of  a  brewery  In  an  incorporated  town, 
and  occupied  part  of  the  building  as  a  residence.  Held,  under  the  laws 
of  Kansas,  that  the  whole  house  was  exempt  as  a  homestead.  In  re 
Tertelling,  2  Dill.  339;  23  Fed.  Cas.  861. 

In  Kentucky,  land  cannot  be  exempted  as  against  debts  contracted 
before  Its  acquisition,  nor  can  a  debtor  claim  the  exemption  of  an  un- 
divided interest  In  lands  upon  which  there  are  no  improvements,  although 
he  intended  to  build  a  house  on  the  property  and  occupy  it  as  a  home- 
stead.   In  re  Duerson,  13  N.  B.  B.  183;  7  Fed.  Cas.  1166. 

A  court  of  bankruptcy  will  recognize  the  right  of  homestead  notwith- 
standing the  bankrupt  has  absconded.  If  his  family  still  resides  thereon, 
in  the  absence  of  proof  that  he  has  acquired  a  domicile  elsewhere.  So 
held  in  Michigan.    In  re  Pratt,  1  Flip.  353;  19  Fed.  Cas.  1247. 

The  provisions  of  the  Homestead  Exemption  Act  of  Missouri  con- 
sidered and  applied  in  Bailey  v.  Comings,  16  N.  B.  R.  382;  2  Fed.  Cas.  367. 

The  homestead  law  of  Missouri  provided  that  It  should  not  apply  to 
any  debts  or  liabilities  contracted  before  it  took  effect.  A  public  ad- 
ministrator gave  his  bond  and  took  the  property  of  a  decedent  before 
the  statute  went  into  force,  and  subsequently  misappropriated  it.  Judge 
Dillon  held  that  the  claim  of  the  heirs  was  a  liability  contracted  before, 
and  in  existence  when,  the  homestead  law  was  passed.  In  re  Hook, 
2  Dill.  92;  12  Fed.  Cas.  453. 

Under  the  laws  of  Missouri  in  force  In  1864,  a  debtor  could  carve 
out  a  homestead  from  a  leasehold  estate,  and  when  it  could  not  be  di- 
vided, he  could  retain  $1,000  from  the  proceeds.  In  re  Beckerford,  1 
Dill.  45;  4  N.  B.  R.  203;  3  Fed.  Cas.  26. 

Reversing  the  district  court.  Judge  Dillon  granted  a  motion  by  the 
mortgagees  for  an  order  directing  the  assignee  in  bankruptcy  to  sell 
the  homestead,  which  was  exempt  under  the  laws  of  Nebraska,  in  pur- 
suance of  a  mortgage  executed  by  the  bankrupt  and  his  wife,  notwith- 
standing it  contained  no  express  waiver  of  the  homestead  right.  In  re 
Cross,  2  Dill.  320;  6  Fed.  Cas.  884. 

In  Nebraska,  a  homestead  exemption  may  be  claimed  as  to  property 
of  which  the  bankrupt  is  not  sole  owner,  but  in  which  he  has  such  an 
interest  as  could  be  sold  on  execution.  Bartholemew  v.  West  et  al.,  2 
Dill.  290;  2  Fed.  Cas.  963. 

Nevada  copied  the  exemption  law  of  California,  but  the  Constitutions 
of  the  two  states  on  that  subject  were  different.  Held,  that  in  constru- 
ing the  Nevada  law  the  court  of  bankruptcy  was  not  bound  by  the 
construction  of  the  courts  of  California;  held,  also,  that  a  bankrupt  was 
entitled  to  an  interest  not  exceeding  $5,000  in  value  in  a  dwelling-house 
and  land  actually  occupied  by  him  as  a  homestead,  notwithstanding  he 
was  only  a  tenant  in  common.  In  re  Swearlnger  et  al.,  5  Saw.  52;  ''3 
Fed.  Cas.  527. 

After  a  homestead  had  been  set  apart,  under  the  laws  of  North 
Carolina,  to  a  bankrupt,  the  district  court  refused  to  order  a  reassess- 
ment to  correct  an  alleged  excess  of  value.  In  re  Hall,  2  Hughes,  411; 
11  Fed.  Cas.  199. 


Bankrupts.  87 

The  laws  of  North  Carolina  require  that  one  who  seeks  a  homestead 
exemption  shall  file  a  petition  and  have  the  property  set  off  to  him. 
The  banlirupt  having  failed  to  comply  with  this  provision,  it  was  ruled 
that  the  assignee  must  sell  the  property  for  the  benefit  of  the  creditors. 
In  re  P'arish,  2  N.  B.  R.  168;  8  Fed.  Gas.  1015. 

While  a  banlirupt  owned  but  a  single  piece  of  real  estate,  which  was 
mortgaged  for  more  than  its  value,  it  was  held  under  the  exemption 
laws  of  Ohio  that  he  was  not  the  owner  of  a  homestead,  and  that  he  was 
entitled  to  an  exemption  from  personal  property  to  an  amount  not  ex- 
ceeding $500.    In  re  May,  16  Fed.  Gas.  1207. 

Held,  in  Ohio,  that  where  the  wife  of  the  bankrupt  is  the  owner  of  a 
house  not  occupied  as  a  homestead,  the  bankrupt  is  entitled  to  an  exemp- 
tion of  property  to  the  value  of  $500.  In  re  Tonne,  13  N.  B.  E.  170;  24 
Fed.  Gas.  51. 

A  single  man,  keeping  house,  and  having  orphan  children  bound  to 
him  under  the  apprentice  laws  of  the  state,  was  held  not  to  be  entitled  to 
the  exemption  of  a  homestead  of  100  acres  under  the  laws  of  Texas.  A 
tract  of  fifty  acres,  not  to  exceed  in  value  $500,  was  ordered  to  be  set 
apart  to  him  as  a  citizen.    In  re  Summers,  3  N.  B.  R.  84;  23  Fed.  Gas.  379. 

It  was  held  not  to  be  necessary  that  town  lots  should  be  contiguous 
to  each  other  to  authorize  an  exemption  under  the  Constitution  of  Texas, 
if  they  were  designated  and  used  as  a  hoinestead,  and  did  not  in  the 
aggregate  exceed  $5,000,  irrespective  of  improvements.  Thelso  v.  Cain, 
23  Fed.  Gas.  906. 

The  laws  of  Vermont  allowed  a  homestead  exemption  to  the  value  of 
$500.  It  was  held  that  that  sum  might  be  put  into  an  undivided  interest 
in  real  estate  and  into  premises  to  which  others  held  the  legal  title. 
Johnson  v.  May  et  ux.,  16  N.  B.  R.  425;  13  Fed.  Gas.  771. 

The  homestead  law  of  Wisconsin  exempts  not  to  exceed  one-quarter 
of  an  acre  of  land  in  a  village  or  city  and  "  the  dwelling-house  thereon." 
It  was  decided  that  this  does  not  cover  a  business  block  used  as  a 
dwelling.  The  court  further  decided  that  in  the  case  of  a  dwelling- 
house  and  a  store  on  the  same  lot,  the  former  could  be  set  off  as  a  home- 
stead, but  that  he  could  not  divide  a  building  and  assign  to  a  bankrupt 
the  part  occupied  by  him.    In  re  Lammer,  7  Biss.  269;  14  Fed.  Gas.  1048. 

The  bankrupt  had  sold  his  homestead,  and  received  notes  in  part  pay- 
ment of  the  purchase  price.  It  was  held  under  the  Act  of  1867  and 
the  laws  of  Virginia  that  he  could  claim  the  notes  as  exempt  against 
Judgments  recovered  against  him  in  actions  for  torts,  and  notwith- 
standing he  had  removed  from  the  state  after  adjudication.  In  re  Rad- 
way,  3  Hughes,  609;  20  Fed.  Gas.  154. 

Under  the  laws  of  Virginia,  a  claim  for  rent  is  superior  to  the  right 
of  homestead.  A  landlord  in  that  state  solicited  and  secured  a  con- 
fession of  judgment  from  the  bankrupt,  the  judgment  showing  that  it 
was  "  recovered  for  rent."  It  was  held  that  he  had  waived  his  specific 
lien,  and  that  the  bankrupt  would  be  allowed  the  homestead  as  against 
the  judgment.    In  re  Lumpkin,  ,2  Hughes,  175;  15  Fed.  Gas.  1110. 


88  The  Bankruptcy  Law. 

The  purchaser  of  property  set  apart  as  a  homestead  under  the  laws 
of  Virginia,  and  sold  by  the  husband,  the  wife  not  concurring,  will  be 
required  to  relinquish  it,  and  a  summary  petition  is  the  proper  pro- 
ceeding for  that  purpose.  In  re  Smith  et  al.,  2  Hughes,  307;  22  Fed.  Cas. 
392.. 

The  homestead  exemption  allowed  by  the  laws  of  Virginia  cannot  be 
set  apart  out  of  partnership  effects.    Ibid. 

Chief  Justice  Waite  held  that  a  bankrupt  might  waive  his  homestead 
exemption  in  a  promissory  note,  under  the  provisions  of  the  Constitution 
and  laws  of  Virginia.    In  re  Solomon,  2  Hughes,  164;  22  Fed.  Cas.  785. 

Personal  Property. 

A  man  without  wife  or  child  may  be  the  "  head  of  a  family,"  under 
a  state  law  relating  to  exemptions.  In  re  Cobb,  1  N.  B.  R.  414;  5  Fed. 
Cas.  1123. 

A  court  of  bankruptcy  loses  jurisdiction  over  property  that  has  been 
set  apart  by  the  assignees  as  exempt,  if  no  exceptions  are  taken  at  the 
time  to  the  action  of  the  assignees.  In  re  Fetherston,  5  Chi.  Leg.  News, 
198;  8  Fed.  Cas.  1174. 

Household  furniture  of  the  bankrupt  had  been  attached  and  sold  by 
order  of  the  court,  pendente  lite.  Proceedings  in  bankruptcy  having  been 
commenced  within  four  months  thereafter,  the  attachment  was  dissolved, 
and  the  proceeds  of  the  sale  paid  to  the  assignee.  The  court  held  that 
the  bankrupt  was  entitled  to  the  money  received  from  the  sale  as  prop- 
erty exempt  by  the  Bankrupt  Act  of  1867.  In  re  Ellis,  1  N.  B.  R.  555; 
8  Fed.  Cas.  549. 

A  mortgagee  of  chattels  cannot  claim  the  exemption  of  property  cov- 
ered by  the  mortgage  as  against  the  assignee  in  bankruptcy,  when  it 
is  not  claimed  by  the  bankrupt  mortgagor.  Edmondson  v.  Hyde,  2  Saw. 
205;  8  Fed.  Cas.  324. 

Construing  the  Act  of  1867  (section  5045,  R.  S.),  the  court  held  that  an 
assignee  in  bankruptcy  cannot  set  apart  money  to  the  bankrupt,  unless 
it  Is  the  proceeds  of  property  specifically  exempt  where  the  family  is 
absolutely  destitute.    In  re  Tucker,  24  Fed.  Cas.  264. 

In  the  case  cited,  Judge  Woods  upheld  the  constitutionality  of  the 
clause  in  the  Act  of  1867,  as  amended  March  3,  1873,  giving  the  bank- 
rupt the  benefit  of  certain  exemptions.  In  re  Smith,  2  Woods,  458;  22 
Fed.  Cas.  413. 

Held,  under  the  Act  of  1867,  that  money  might  be  allowed  to  the  bank- 
rupt for  the  temporary  support  of  his  family  when  the  circumstances 
required  it;  but  that  real  estate  could  not  be  set  apart  as  exempt  prop- 
erty under  the  head  of  "  articles  or  necessaries."  In  re  Thornton  2  N 
B.  R.  189;  23  Fed.  Cas.  1144. 

An  application  for  an  exemption  made  to  the  assignee  in  bankruptcy 
under  the  Act  of  1867  (section  14),  and  denied  by  the  assignee,  was  re- 
viewed by  the  district  judge  on  an  exception  to  a  decision  of  the  as- 
signee.   In  re  Thiell,  4  Biss.  241;  23  Fed.  Cas.  917. 


Bankrupts.  89 

A  court  of  bankruptcy  has  no  jurisdiction  to  defend  exempt  property, 
after  it  has  been  designated  and  set  apart,  against  adverse  claims. 
Jeferies  v.  Bartlett,  20  Fed.  Rep.  40C. 

Where  a  partnership  sold  Its  property  and  divided  the  proceeds  a 
month  before  the  filing  of  a  petition  in  banlvruptcy,  and  one  partner 
purchased  property  exempt  under  the  laws  of  the  state,  it  xms  held 
that  it  must  be  deemed  partnership  assets.  In  re  Melvin  et  al.,  17  N. 
B.  R.  543;  16  Fed.  Cas.  1338. 

Where  the  question  was  raised  whether  the  banlirupt  liad  made  a  full 
disclosure  of  his  property,  the  court  refused  to  allow  his  exemptions 
under  section  1-4  of  the  Act  of  1867,  until  he  had  passed  his  final  examina- 
tion.   In  re  Mastbaum.  16  Fed.  Oas.  1080. 

A  banlirupt  must  apply  for  his  exemption  previous  to  obtaining  his 
discharge.    In  re  Kean  et  al.,  2  Hughes,  322;  14  Fed.  Cas.  157. 

The  court  held  that  the  banlirupt  was  entitled  to  the  exemption  of 
the  articles  specified  In  section  14  of  the  Act  of  1867  (section  5045,  R.  S.), 
notwithstanding  they  had  been  talcen  under  an  execution  prior  to  the 
commencement  of  the  proceedings.  In  re  Martin,  2  Hughes,  418;  16 
Fed.  Cas.  880. 

The  proper  proceeding  by  a  bankrupt  who  feels  aggrieved  by  the 
action  of  the  assignee  in  setting  apart  his  exempt  property  was  held 
to  be  to  except  to  the  order  of  the  assignee,  and  that  the  question  be 
certified  to  the  court.    In  re  Pry  or,  4  Biss.  262;  20  Fed.  Cas.  28. 

An  assignee  need  not  designate  property  upon  which  there  is  no  liep 
in  setting  apart  the  exemptions  of  the  bankrupt.  In  re  Preston,  6  N. 
B.  R.  545;  19  Fed.  Cas.  1291. 

Where  an  assignee  moves  to  have  an  attachment  dissolved  as  to  prop- 
erty that  has  already  been  set  apart  as  exempt,  he  is  personally  liable 
for  the  costs  of  the  proceeding.  In  re  Preston,  6  N.  B.  B.  545;  19  Fed. 
Cas.  1291. 

The  fact  that  a  bankrupt  had  made  a  conveyance  of  property  in  viola- 
tion of  the  Bankrupt  Act  does  not  deprive  him  of  a  lawful  exemption 
out  of  the  property.    Penny  v.  Taylor,  10  N.  B.  R.  200;  19  Fed.  Cas.  194. 

The  bankrupt's  household  furniture  had  been  seized  and  sold  under 
execution  and  distress  for  rent.  The  court  held  that  the  assignee  could 
not  pay  him  out  of  the  funds  in  his  hands  a  sum  of  money  representing 
his  lawful  exemptions.    In  re  Lawson,  2  N.  B.  B.  54;  15  Fed.  Cas.  87. 

A  debtor  had  made  an  assignment  of  all  his  property  for  the  benefit 
of  preferred  creditors.  Proceedings  having  been  commenced  in  bank- 
ruptcy, the  assignee  brought  an  action  to  recover  such  property,  and  the 
court  held  that  the  value  of  the  property  which  was  exempt  must  be 
deducted,  and  judgment  entered  only  for  the  balance.  Grow  v.  Ballard 
et  al.,  2  N.  B.  R.  194;  11  Fed.  Cas.  88. 

Held,  that  money  could  not  be  set  over  to  the  bankrupt  under  the 
words  "  articles  and  necessaries  "  in  section  14  of  the  Act  of  1867,  unless 
It  was  the  proceeds  of  specific  things  which  ought  to  have  been  set 
apart.    In  re  Welch,  5  Be£  230;  29  Fed.  Cas.  605. 


90  The  Bankeuptcy  Law. 

Watches,  breast-pins,  guns,  pistols,  fishing  tackle,  and  paintings  were 
held  not  to  be  "  necessaries,"  within  the  contemplation  of  the  Act  of  1841. 
In  re  Ludlow,  1  N.  Y.  Leg.  Obs.  322;  15  Fed.  Gas.  1079  (1843). 

Under  the  circumstances  of  the  case,  the  assignee  was  allowed  to  set 
apart  a  sum  of  money  to  the  bankrupts  as  "  necessaries,"  under  section 
14  of  the  Act  of  1867.    In  re  Hay  et  al.,  2  Low.  180;  11  Fed.  Gas.  887. 

Where  the  owner  of  exempt  personal  property  mortgages  it,  he  waives 
the  exemption  as  against  the  mortgagee,  but  not  as  against  the  assignee 
in  bankruptcy,  if  there  should  be  a  surplus  after  the  payment  of  the 
mortgaged  debt.    In  re  Jones,  2  Dill.  343;  13  Fed.  Gas.  931. 

The  filing  of  a  petition  In  bankruptcy  was  held  to  be  an  election  to 
take  the  exemption  in  force  in  1864  according  to  the  terms  of  the  Act 
of  1867,  notwithstanding  a  later  law  of  the  state  made  a  more  liberal 
exemption.    In  re  Askew,  3  N.  B.  R.  575;  2  Fed.  Gas.  29. 

Property  of  the  bankrupt  which  is  exempt  under  the  bankrupt  law, 
as  well  as  the  law  of  the  state,  cannot  be  sold  after  the  filing  of  his 
petition  in  bankruptcy,  although  it  was  levied  upon  before.  In  re  Griffin, 
2  N.  B.  R.  254;  11  Fed.  Gas.  5. 

In  making  out  a  list  of  property  to  be  set  over  to  the  bankrupt  as 
exempt,  the  value  of  each  article  should  be  stated  so  as  to  show  that  the 
aggregate  does  not  exceed  the  limitations  of  the  act.  In  re  Graham,  2 
Biss.  449;  10  Fed.  Gas.  914. 

In  setting  apart  to  a  bankrupt  property  that  is  exempt,  but  upon 
which  there  is  a  lien  for  alimony,  it  should  be  stated  in  the  order  that 
it  does  not  prejudice  the  wife's  rights.  In  re  Garrett,  2  Hughes,  235;  10 
Fed.  Gas.  47. 

Where  a  bankrupt  makes  a  sale  in  fravid  of  his  creditors,  it  is  good 
as  against  him;  and  it  follows  that  he  cannot  claim  such  property  as 
exempt  after  it  had  been  recovered  in  a  suit  by  the  assignee.  In  re 
Graham,  2  Biss.  449;  10  Fed.  Gas.  914. 

In  adopting  the  exemption  laws  of  the  states,  respectively,  congress 
cannot  abrogate  any  of  the  conditions  or  limitations  contained  in  such 
laws.    In  re  Duerson,  13  N.  B.  R.  183;  7  Fed.  Gas.  1166. 

Under  the  Act  of  1867  where  the  assignee  had  made  an  authorized 
exemption  of  personal  property,  creditors  were  required  to  except  under 
general  order  19;  but  as  to  real  estate  no  exception  was  necessary  except 
to  the  account  of  the  assignee,  as  the  title  to  the  real  estate,  remained 
in  the  assignee  notwithstanding  his  action.  In  re  Gainy,  2  N.  B.  R.  525; 
9  Fed.  Gas.  1065. 

Under  the  Act  of  1867,  as  amended,  the  law  of  the  domicile  as  it 
existed  in  1871,  fixed  the  bankrupt's  exemptions,  notwithstanding  they 
were  subsequently  reduced  by  the  Gonstitution  and  laws  of  the  state. 
In  re  Gohen,  3  Dill.  295;  6  Fed.  Gas.  13. 

The  constitutionality  of  the  amendment  of  1S73  to  the  Act  of  1867, 
which  increases  exemptions,  is  upheld  in  its  operation  on  debts  con- 
tracted prior  to  the  passage  of  the  act,  liens  by  judgment,  etc.,  in  In  re 
Jordan,  8  N.  B.  R.  180;  13  Fed.  Gas.  1079,  and  10  N.  B.  R.  427;  13  Fed. 
Gas.  1082. 


Bankrupts.  91 

The  Constitution  of  Arkansas  adopted  in  1868,  provided  that  "  The  per- 
sonal property  of  any  resident  of  this  state  to  the  value  of  two  thousand 
dollars,  to  be  selected  by  such  resident,  shall  be  exempted  from  sale  on 
execution,"  etc.;  also  that  "All  laws  of  this  state  not  in  conflict  with 
this  Constitution  shall  remain  in  full  force  until  otherwise  provided  by 
the  general  assembly,  or  until  they  shall  expire  by  their  own  limitation." 
At  that  time  there  was  a  statute  in  force  maliing  liberal  exemptions  of 
personal  property.  Judge  Dillon  held  that  the  constitutional  exemption 
was  exclusive,  and  a  bankrupt  could  only  claim  $2,000  and  could  not 
claim  any  additional  exemption  under  the  law  of  Arkansas  or  under 
section  14  of  the  Bankruptcy  Act  of  1867,  as  amended  by  the  Act  of 
June  8,  1872.    In  re  Hezekiah,  2  Dill.  551;  12  Fed.  Cas.  92. 

A  bankrupt  Is  not  entitled  to  an  exemption  of  the  property  of  the  firm 
of  which  he  was  a  member.  In  re  Tonne,  13  N.  B.  R.  170;  24  Fed.  Cas. 
51.  So  held  in  Arkansas  under  the  Act  of  1867  and  the  Constitution  of 
that  state  adopted  In  1868.  In  re  Handlin  et  al.,  3  Dill.  290;  11  Fed.  Cas. 
421.  Also  in  Pennsylvania  construing  the  law  of  the  state  and  the  Baulv- 
rupt  Act  of  1867.  In  re  Hafer  et  al.,  1  N.  B.  R.  547;  11  Fed.  Cas.  152. 
Judge  Sawyer  rendered  a  decision  to  the  same  effect  putting  it  upon  the 
ground  that  the  assets  of  a  partnership  are  not  "  property  of  the  part- 
ners," within  the  meaning  of  the  exemption  laws.  In  re  C'orbett,  5  Saw. 
206;  6  Fed.  Cas.  528.  Judge  Erskine  quoted,  with  approval,  the  language 
of  Judge  Dillon  as  follows:  "While  the  adjudged  cases  relating  to  the 
question  under  consideration  are  not  uniform,  a  careful  examina- 
tion of  all  of  them  justifies  me  in  saying  that  they  are  quite  decisively 
against  the  proposition  that  individual  exemptions  can  be  allowed  out 
of  the  partnership  estate  at  the  expense  of  the  joint  creditors."  In  re 
Stewart  et  al.,  13  N.  B.  R.  295;  23  Fed.  Oas.  51.  But  see  the  following 
cases: 

When  a  state  law  allows  money  exemption,  such  exemption  may  be 
allowed  to  the  individual  partners  out  of  the  partnership  assets  in 
bankruptcy.    In  re  Young,  3  N.  B.  R.  440;  30  Fed.  Cas.  835  (1869). 

Held,  that  when  the  individual  estate  of  a  bankrupt  was  sufiicient  to 
furnish  the  exemption  allowed  by  the  state  laws  It  should  be  subject 
thereto;  but  if  not,  the  debtor  could  have  his  exemptions  allowed  out  of 
the  assets  of  the  firm  of  which  he  was  a  member.  In  re  Richardson  et 
al.,  1  N.  B.  R.  114;  20  Fed.  Cas.  607. 

An  exemption  can  only  be  allowed  to  a  partner  out  of  the  surplus  of 
the  partnership  effects  after  a  payment  of  creditors.  In  re  Price  et  al.,  6 
N.  B.  R.  400;  19  Fed.  Oas.  1314. 

Nothing  can  be  set  apart  to  a  firm  as  exempt  property,  because  it 
ceased  to  exist  as  a  firm  upon  the  adjudication  in  bankruptcy.  In  re 
Blodgett  et  al.,  10  N.  B.  R.  145;  3  Fed.  Cas.  721. 

Under  the  laws  of  Michigan,  the  individual  members  of  a  firm  are  not 
entitled  to  a  separate  exemption  of  "  tools,  implements,  materials,  stock, 
*  *  *  not  to  exceed  in  value  two  hundred  and  fifty  dollars."  In  re 
Blodgett  et  al.,  10  N..  B.  R.  145;  3  Fed.  Cas.  721;  In  re  Boothroyd  et  al., 
14  N.  B.  B.  223;  3  Fed.  Cas.  892. 


92  The  Bankeuptcy  Law. 

An  exemption  allowed  by  the  laws  of  the  state  attaches  to  a  partner 
who  has  bought  out  his  copartner,  even  against  the  creditors  of  the  firm. 
In  re  Bjornstad,  9  Biss.  13;  3  Fed.  Cas.  489. 

The  individual  members  of  a  firm  can  claim  no  exemptions  from  its 
assets  until  all  the  partnership  debts  are  paid.  In  re  Oroft  et  al.,  8  Biss. 
188;  6  Fed.  Cas.  838. 

It  was  decided  under  the  laws  of  Colorado,  that  a  merchant  might 
«laim  the  exemption  of  a  horse,  but  not  a  buggy,  and  that  he  was  not 
entitled  to  tlio  exemption  of  .$200  worth  of  goods  as  stock  in  trade.  In 
re  Peabody,  16  N.  B.  R.  243;  19  Fed.  Cas.  35. 

The  laws  of  Georgia  exempt  property  of  the  value  of  ?1,000  in  specie. 
The  bankrupt  set  apart  and  claimed  certain  goods  as  exempt,  but  the 
assignee  sold  the  goods  with  others,  and  afterward  paid  to  the  bank- 
rupt $1,000  out  of  the  proceeds.  Held,  that  the  bankrupt  was  only  on- 
titled  to  the  proceeds  of  the  specific  goods  set  apart  by  him.  In  re 
Friend,  3  Woods,  383;  7  Fed.  Cas.  821. 

An  unmarried  man  who  contributes  to  the  support  of  a  mother  and 
sister  living  in  another  town,  is  not  entitled  to  the  exemption  allowed 
the  "  head  of  a  family  "  by  the  laws  of  Georgia.  Jones  v.  Gray,  3  Woods, 
494;  13  Fed.  Cas.  956. 

By  the  laws  of  Kansas,  a  merchant  tailor  who  cuts  and  fits  garments 
is  entitled  to  an  exemption  to  the  value  of  $400.  When  the  exemption 
was  claimed  before  the  sale  of  the  goods  by  the  assignee,  it  constituted 
a  lien. against  the  proceeds  of  the  goods  while  in  the  hands  of  the  court. 
In  re  Jones,  2  Dill.  343;  13  Fed.  Cas.  031. 

The  laws  of  Maine  exempt  "  all  produce  of  farmers  "  until  harvested. 
Under  this  provision  it  was  held  that  growing  crops  were  exempted 
to  a  bankrupt,  and  that  he  might  continue  to  occupy  the  farm  until 
the  crops  were  harvested,  on  paying  rent  therefor  to  the  assignee.  It 
was  also  held  that  the  effect  of  the  adjudication  in  bankruptcy  was  the 
same  as  a  voluntary  deed  of  conveyance  to  the  assignee  with  a  reserva- 
tion of  the  crops.    In  re  Hussey,  2  Hask.  244;  12  Fed.  Cas.  1052. 

The  legislature  of  North  Carolina  repealed  the  statutory  provisions  and 
restored  the  common-law  right  of  dower.  Subsequently  H.  filed  a  peti- 
tion in  bankruptcy.  After  the  issuance  of  the  warrant,  he  died,  leaving 
a  widow.  It  was  held  that  the  widow  was  entitled  to  dower  in  the  real 
■estate  of  her  deceased  husband.  The  legislature  attempted  to  create  ad- 
ditional exemptions  to  those  theretofore  allowed  by  law.  Such  exemp- 
tions are  void  as  to  creditors  whose  debts  were  contracted  previous  to 
the  passage  of  the  act.  The  personal  property  exempted  by  the  Act  of 
1867  upon  the  death  of  the  husband  passes  to  his  legal  representatives. 
The  widow  is  not  entitled  to  it,  neither  does  it  go  to  the  assignee  in 
bankruptcy.    In  re  Hester,  5  N.  B.  R.  285;  12  Fed.  Oas.  68. 

It  was  held  under  the  laws  of  North  Carolina  that  the  wife  of  a  bank- 
rupt could  not  claim  dower  out  of  lands  owned  by  him  at  the  commence- 
ment of  proceedings,  in  the  lifetime  of  the  husband.  Kelly  v.  Strange, 
3  N.  B.  R.  8;  14  Fed.  Cas.  273. 


Bankeupts.  93 

Held,  under  the  Act  of  1867,  that  the  provisions  of  the  Constitution 
of  North  Carolina  respecting  exemptions  applied  to  contracts  existing 
before  the  adoption  of  the  Constitution  as  well  as  those  made  after- 
ward.   In  re  Vogler,  2  Hughes,  207;  28  Fed.  Gas.  1248.     • 

It  was  held  in  New  York  under  the  Act  of  1841,  that  articles  of 
jewelry  were  not  exempt  as  wearing  apparel;  also  that  the  wife  of  a 
bankrupt  could  retain  articles  of  jewelry  belonging  to  her  before  mar- 
riage, and  such  as  had  been  presented  to  her  afterward,  if  they  were 
suitable  to  her  circumstances  in  life,  which  was  held  to  be  a  question 
of  fact.    In  re  Kasson,  4  Law  Rep.  489;  14  Fed.  Gas.  138  (1842). 

The  exemption  in  the  laws  of  Oregon  of  certain  implements  to  one 
who  carries  on  a  "  trade,  occupation  or  profession,"  was  held  not  to  apply 
to  a  contractor.    In  re  Whetmore,  Deady,  585;  29  Fed.  Gas.  921. 

Under  the  laws  of  Pennsylvania,  an  expectant  interest  may  be  set 
apart  for  the  use  of  the  bankrupt,  provided  its  present  value  does  not 
exceed  $300.    In  re  Bennett,  2  N.  B.  E,  181;  3  Fed.  Gas.  211. 

Under  section  14  of  the  Act  of  1867,  a  bankrupt  could  claim  as  exempt 
furniture  and  other  articles  to  the  value  of  $500.  Under  the  laws  of 
Pennsylvania,  he  could  claim  property  of  the  value  of  $300;  but  such 
exemption  could  not  include  the  same  kinds  of  property  as  were  claimed 
under  the  Bankrupt  Act.  It  was  further  held  that  the  state  exemption 
must  be  governed  by  the  amount  allowed  and  the  mode  designated  by 
the  law  of  the  state.    In  re  Feely,  3  N.  B.  R.  66;  8  Fed.  Gas.  1123. 

The  household  of  an  unmarried  man  consisted  of  an  adopted  son,  a 
housekeeper  and  servants.  This  was  held  not  to"  make  him  the  "  head  of 
a  family  "  so  as  to  entitle  him  to  the  exemption  under  the  Constitution 
of  South  Carolina.    In  re  Lambson,  2  Hughes,  233;  14  Fed.  Gas.  1047. 

Held,  that  the  law  of  Texas,  respecting  certain  exemptions  (Laws  1874, 
p.  55),  applied  only  to  rural,  and  not  urban  landlords.  In  re  Robinson, 
20  Fed.  Oas.  983. 

Referring  to  an  exemption  in  the  Act  of  1867,  Judge  Hammond  said: 
"  Guided  by  these  humane  and  liberal  principles  of  construction,  I  should 
say  that  to  a  commercial  man  a  plain  and  not  extravagantly  costly 
watch,  such  as  this  bankrupt  owned,  is,  in  the  quaint  language  of  the 
Vermont  statute,  '  necessary  for  upholding  life.'  "  In  re  Steele,  2  Flip. 
324;  22  Fed.  Cas.  1202. 

Under  the  law  of  Virginia,  the  court  allowed  real  estate  to  be  set  apart 
as  a  portion  of  the  bankrupt's  exemption  where  it  would  not  injure  the 
sale  of  other  real  estate,  or  Impair  the  interest  of  creditors.  In  re 
Edward,  2  N.  B.  R.  349;  8  Fed.  Gas.  343. 

Property  that  was  exempt  under  the  laws  of  Wisconsin,  where  the 
bankrupt  resided,  was  in  the  possession  of  an  officer  in  Illinois  under  a 
writ  of  attachment.  Held,  that  it  was  the  duty  of  the  court  of  bank- 
ruptcy to  protect  the  exemption  as  it  existed  in  the  former  state,  with- 
out reference  to  the  laws  of  Illinois.  In  re  Stevens,  2  Biss.  373;  23  Fed. 
Oas.  2. 

Merchants  are  entitled  to  the  benefit  of  the  provisions  of  the  laws 
of  Wisconsin  which  exempt   "  the  tools   and   Implements   or   stock   in 


94  The  Bankbuptct  Law. 

trade  of  any  mechanic,  or  other  person,  used  or  kept  for  the  purpose  of 
carrying  on  his  trade  or  business  not  to  exceed  two  hundred  dollars  in 
value."    In  re  Bjornstad,  9  Biss.  13;  3  Fed.  Cas.  489. 

The  laws  of  Wisconsin  exempt  "  the  tools  and  implements  of  stock  in 
trade  of  any  mechanic,  miner  or  other  person  used  and  kept  for  the 
purpose  of  carrying  on  his  trade  or  business  not  exceeding  two  hundred 
dollars  in  value."  It  was  held  that  an  article  which  a  merchant  buys 
merely  for  the  purpose  of  exchanging  for  money,  or  other  valuable 
property,  or  a  watch  bought  by  a  jeweler  for  the  purpose  of  selling,  did 
not  come  within  the  exemption.  Ex  parte  Robinson  et  al.,  7  Biss.  125; 
20  Fed.  Cas.  963. 

The  laws  of  Wisconsin  exempted  "  tools  and  implements,  or  stock 
in  trade  of  any  mechanic,  miner,  or  other  person  used  or  kept  for  the 
purpose  of  carrying  on  his  trade  or  business,  not  exceeding  two  hundred 
dollars  in  value."  It  was  held  under  the  Act  of  1867  that  the  individual 
members  of  a  mercantile  firm  could  not  claim  $200  each  out  of  the  part- 
nership stock.  In  re  Hughes  et  al.,  8  Biss.  107;  12  Fed.  Cas.  832; 
[For  wife's  right  of  dower,  see  §  8.] 

Duties  of  Bankrupts. 

§  7.  Duties  of  Bankrupts. — (a.)  The  bankrupts  shall  — 

(1.)  Attend  the  first  meeting  of  his  creditors,  if  directed  by  the  court 
or  a  judge  thereof  to  do  so,  and  the  hearing  upon  his  application  for 
a  discharge,  if  filed; 

(2.)  Comply  with  all  lawful  orders  of  the  court; 

(3.)  Examine  the  correctness  of  all  proofs  of  claims  filed  against  his 
estate; 

(4.)  Execute  and  deliver  such  papers  as  shall  be  ordered  by  the 
court; 

(5.)  Execute  to  his  trustee  transfers  of  all  his  property  in  foreign 
countries; 

(6.)  Immediately  inform  his  trustee  of  any  attempt,  by  his  creditors 
or  other  persons,  to  evade  the  provisions  of  this  act,  coming  to  his 
knowledge; 

(7.)  In  case  of  any  person  having  to  his  knowledge  proved  a  false 
claim  against  his  estate,  disclose  that  fact  immediately  to  his  trustee; 

(8.)  Prepare,  make  oath  to,  and  file  in  court  within  ten  days,  unless 
further  time  is  granted,  after  the  adjudication,  if  an  involuntary  bank- 
rupt, and  with  the  petition  if  a  voluntary  bankrupt,  a  schedule  of  his 
property,  showing  the  amount  and  kind  of  property,  the  location 
thereof,  its  money  value  in  detail,  and  a  list  of  his  creditors,  showing 
their  residences,  if  known,  if  unknown,  that  fact  to  be  stated,  the 


Bankeupts.  ■  95 

amounts  due  each  of  them,  the  consideration  thereof,  the  security  held 
by  them,  if  any,  and  a  claim  for  such  exemptions  as  he  may  be  entitled 
to,  all  in  triplicate,  one  copy  of  each  for  the  clerk,  one  for  the  referee, 
and  one  for  the  trustee;  and 

(9.)  When  present  at  the  first  meeting  of  his  creditors,  and  at  such 
other  times  as  the  court  shall  order,  submit  to  an  examination  con- 
cerning the  conducting  of  his  business,  the  cause  of  his  bankruptcy, 
his  dealings  with  his  creditors  and  other  persons,  the  amount,  kind,  and 
whereabouts  of  his  property,  and,  in  addition,  all  matters  which  may 
affect  the  administration  and  settlement  of  his  estate;  but  no  testimony 
given  by  him  shall  be  offered  in  evidence  against  him  in  any  criminal 
proceeding. 

Provided,  however,  That  he  shall  not  be  required  to  attend  a  meeting 
of  his  creditors,  or  at  or  for  an  examination  at  a  place  more  than  one 
hundred  and  fifty  miles  distant  from  his  home  or  principal  place  of 
business,  or  to  examine  claims  except  when  presented  to  him,  unless 
ordered  by  the  court,  or  a  judge  thereof,  for  cause  shown,  and  the  bank- 
rupt shall  be  paid  his  actual  expenses  from  the  estate  when  examined 
or  required  to  attend  at  any  place  other  than  the  city,  town,  or  village 
of  his  residence. 

Preparation  and  Amendment  of  Schedules. 

A  bankrupt  Is  obliged  to  take  up  on  his  schedules  partnership  prop- 
erty as  well  as  his  separate  estate,  but  he  need  not  include  an  action  in 
tort.    In  re  Brick,  4  Fed.  Rep.  804. 

The  bankrupt  conducted  a  saloon  under  an  arrangement  with  the 
owner  by  which  he  received  one-half  of  the  net  profits  for  his  services. 
Held,  that  he  was  not  bound  to  take  this  interest  upon  his  schedules.  In 
re  Beardsley,  1  N.  B.  B.  457;  2  Fed.  Cas.  1176. 

The  offense  of  omitting  property  from  a  bankrupt's  schedules,  de- 
fined In  the  Act  of  1867,  was  held  to  be  complete  when  the  false  schedule 
was  filed.    United  States  v.  Clark,  1  Low.  402;  35  Fed.  Cas.  446. 

A  petitioner  is  not  obliged  to  enter  upon  his  schedule  of  property  an 
interest  which  he  has  in  the  net  profits  of  a  firm  as  partial  compensa- 
tion for  his  services.  In  re  Brown,  5  Law  Rep.  121;  4  Fed.  Oas.  332 
(1842). 

A  bankrupt  is  not  obliged  to  enter  upon  his  schedule  of  liabilities  a 
contingent  liability  as  stockholder  in  a  corporation  that  has  suspended, 
where  it  is  not  in  proof  that  it  will  not  be  able  to  pay  its  debts  without 
resorting  to  the  stockholders.  In  re  Greenebaum  et  al.,  1  Ohl.  L.  J.  599; 
10  Fed.  Cas.  1156. 

A  bankrupt  who  omitted  certain  items  from  his  schedule  upon  the 
advice  of  his  counsel  was  held  not  to  be  guilty  of  perjury  under  the 


96  The  Bankeuptcy  Law. 

Act  of  1841.    United  States  v.  Conner,  3  McLean,  573;  25  Fed.  Cas.  595 
(1842). 

A  conveyance  made  to  a  bankrupt  had  been  impeached  as  fraudulent 
In  a  suit  in  a  state  court,  and  a  receiver  had  been  appointed  to  take 
charge  of  the  property  in  controversy.  Held,  that  the  omission  of  the 
property  so  held  by  the  receiver  from  the  schedules  of  the  bankrupt  wns 
not  a  suflBcient  ground  for  refusing  a  discharge.  In  re  Freeman,  4  Ben. 
245;  9  Fed.  Cas.  750. 

The  bankrupt's  'property  had  been  sold  under  execution,  and  purchased 
by  his  wife  with  her  separate  funds.  It  was  hold  that  he  was  not 
obliged  to  enter  the  property  on  his  schedules.  In  re  Pomeroy,  2  N- 
B.  R.  14;  19  Fed.  Cas.  956. 

The  bankrupt  omitted  from  his  schedule  of  liabilities  certain  debts 
that  were  barred  by  the  statute  of  limitations  of  the  state  where  the 
proceedings  were  commenced,  but  might  possibly  be  enforced  under  the 
laws  of  another  state.  The  court  held  that  they  should  have  been  in- 
cluded.   In  re  Perry,  1  N.  B.  R.  220;  19  Fed.  Cas.  263. 

Neither  a  judgment  nor  the  levy  of  an  execution  divests  a  bank- 
rupt of  his  property,  and  he  is  bound  to  take  up  the  property  on  which 
such  a  levy  was  made  on  his  schedule.  In  re  Lady  Bryan  Min.  Co.,  6  N. 
B.  R.  252;  14  Fed.  Cas.  928. 

Judge  Deady,  of  the  district  court  of  Oregon,  decided  that  a  willful 
omission  by  a  bankrupt  of  a  debt  due  by  him  is  sufHcient  ground  for 
refusing  a  discharge;  but  did  not  decide  whether  any  creditor  but  the 
one  whose  debt  was  omitted  had  a  right  to  object  to  the  discharge. 
In  re  Kallish,  Deady,  575;  14  Fed.  Cas.  9S. 

The  bankrupt  entered  certain  property  on  his  schedule  as  exempt. 
The  court  held  that  it  was  the  duty  of  the  assignee  to  correct  or  dis- 
regard to  entry,  and  that  it  did  not  affect  the  truth  of  the  schedule. 
In  re  Whetmore,  Deady,  585;  29  Fed.  Cas.  921. 

A  bankrupt  having  property  in  his  possession  and  treating  it  as  his 
own,  who  omits  it  from  his  schedule  and  does  not  turn  it  over  to  his 
assignee,  is  chargeable  with  concealment,  and  it  is  no  answer  to  state 
that  it  really  belongs  to  his  assignees  by  virtue  of  a  previous  assign- 
ment under  the  insolvent  laws  of  the  state.  In  re  Beal,  1  Low.  325;  2 
Fed.  Cas.  1107. 

Before  the  passage  of  the  Act  of  1841,  a  debtor,  with  many  circum- 
stances of  fraud,  had  bought  a  house  and  taken  the  title  in  his  mother's 
name,  and  subsequently  confessed  judgment  to  his  mother,  which  was 
partly  satisfied  by  the  sale  of  his  household  furniture,  etc.  Held,  that 
he  was  not  obliged  to  take  up'  the  house  on  his  schedule  of  assets,  and 
that  he  could  properly  insert  his  mother  on  the  schedule  of  liabilities 
for  the  deficiency  in  her  judgment.  Ex  parte  Robertson,  1  N.  Y.  Leg. 
Obs.  20;  20  Fed.  Cas.  938  (1842). 

It  was  held  under  the  Act  of  1841,  that  the  inventory  or  schedule  must 
designate  property  so  that  the  assignee  can  find  it  out  and  identify  it. 
The  court  said:  "  This  is  not  a  mere  matter  of  form,  but  it  is  made  by  the 
law  a  condition  that  he  should  do  so,  and  he  can  no  more  obtain  his 


Bankrupts.  •  gy 

discharge  without  a  proper  Inventory,  than  he  could  without  entering  his 
petition."    In  re  Prisbee,  4  Law  Rep.  483;  &  Fed.  Cas.  959. 

A  schedule  of  the  bankrupt's  personal  estate  that  fails  to  set  forth 
the  separate  items  is  defective,  but  can  be  amended.  So  as  to  a  state- 
ment of  liabilities.    In  re  Hill,  1  Ben.  321;  12  Fed.  Cas.  144. 

A  description  of  real  estate  in  a  schedule  is  sufficient  when  it  gives 
the  county  and  town  in  which  it  is  situated,  and  the  name  of  the  banli- 
rupt's  grantor.    In  re  Dodge,  7  Fed.  Cas.  785  (1842). 

Under  the  rule  of  court  requiring  schedules  to  be  written  plainly 
and  without  abbreviations,  the  use  of  ditto  marks  (")  to  bring  down  a 
word  from  the  preceding  line  is  forbidden.  In  re  Orne,  1  N.  B.  R.  79;  18 
Fed.  Cas.  823  (1867). 

It  was  questioned  by  Judge  Hall,  whether  a  schedule  which  gave 
the  residences  of  creditors  in  abbreviations,  as  N.  Y.  for  New  York, 
could  be  certified,  but  he  refused  to  decide  the  question  on  an  ex  parte 
hearing.    Anon.,  2  N.  B.  R.  141;  1  Fed.  Cas.  1015. 

A  creditor  will  not  be  heard  to  object  to  omissions  in  the  schedules 
of  a  petitioner  that  are  not  specifically  pointed  out.  In  re  Plimpton,  4 
Law  Rep.  488;  19  Fed.  Gas.  874. 

Held,  that  no  creditor  had  a  right  to  oppose  an  application  of  the 
bankrupt  to  amend  his  schedules  so  as  to  include  a  lease  which  had 
been  omitted.    In  re  Watts,  3  Ben.  166;  29  Fed.  Cas.  433. 

Where  the  bankrupt  omitted  from  his  schedule  certain  debts  which  he 
claimed  were  barred  by  the  statute  of  limitations,  and  the  creditors  had 
no  notice  of  the  proceedings  in  bankruptcy,  a  discharge  was  refused,  and 
the  case  referred  back  to  a  register  for  further  proceedings.  In  re  Cush- 
man,  7  Ben.  482;  6  Fed.  Cas.  1066. 

Creditors  have  no  right  to  object  to  an  amendment  by  the  bankrupt 
of  his  schedule  of  creditors  for  the  purpose  of  Inserting  a  name  acci- 
dentaly  omitted,  and  no  notice  is  required.    In  re  Hill,  5  Fed.  Rep.  448. 

After  a  hearing  on  specifications  in  opposition  to  the  discharge  of  a 
bankrupt,  he  was  allowed  to  amend  his  schedule  of  assets  by  supplying 
an  omission.    In  re  Preston,  3  N.  B.  R.  103;  19  Fed.  Cas.  1289. 

It  was  held  to  be  competent  under  the  Act  of  1867,  for  a  register  to 
allow  amendments  to  the  schedules  without  notice.  In  re  Heller,  5  N.  B. 
R.  46;  11  Fed.  Cas.  1052. 

A  schedule  of  creditors  cannot  be  corrected  on  a  motion  pending  be- 
fore the  register  to  record  a  resolution  of  composition,  so  as  to  show 
that  the  required  number  had  joined.  The  correction  can  only  be  made 
at  a  meeting  of  creditors.  Confirmation  of  the  composition  was  thereupon 
denied  with  leave  to  renew.    In  re  Asten,  8  Ben.  350;  2  Fed.  Cas.  69. 

A  bankrupt  who  had  omitted  an  estate  in  expectancy  from  his  schedule 
was  denied  a  discharge,  but  allowed  to  amend  and  renew  his  applica- 
tion.   In  re  Oonnell,  3  N.  B.  R.  443;  6  Fed.  Cas.  304. 

Errors  in  the  making  of  schedules  may  be  cured  by  amendments  on 
the  payment  of  costs,  when  they  are  due  to  inadvertence  only.  In  re 
Frlsbee,  4  Law  Rep.  483;  9  Fed.  Cas.  959. 


98  The  Bankbuptct  Law. 

The  court  said  that  it  would  be  a  very  dangerous  practice  to  permit 
a  voluntary  bankrupt  to  make  material  changes  in  liis  schedules  after 
the  close  of  business  at  the  first  meeting  of  creditors.  In  re  Morganthal, 
1  N.  B.  R.  402;  17  Fed.  Oas.  769. 

Judge  Blatchford  held  that  under  the  Act  of  1867,  and  the  rules  of  the 
supreme  court,  the  register  and  the  district  court  had  co-ordinate  power 
to  allow  a  petitioner  in  bankruptcy  to  amend  his  schedules,  and  that  the 
amendment  should  be  filed  with  the  clerk.  In  re  Morford,  Ben.  264;  17 
Fed.  Oas.  745. 

A  bankrupt  was  allowed  to  make  additions  to  his  schedules  after 
the  first  meeting  of  creditors,  but  upon  condition  that  there  should  be 
a  new  warrant  issued,  embracing  as  well  the  names  of  creditors  already 
notified  as  of  those  named  in  the  amendment,  notifying  them  to  meet 
before  the  register  on  a  day  to  be  named  therein  and  prove  their  debts. 
In  re  Radchffe,  1  N.  B.  R.  400;  20  Fed.  Gas.  300. 

Shields,  a  debtor,  to  avoid  forced  sales,  under  execution,  conveyed 
to  his  son-in-law,  a  bankrupt,  certain  lands.  The  bankrupt  received  no 
deed,  but  himself  made  conveyance  of  the  land  which  had  been  deeded 
to  himself,  the  consideration  for  the  land  being  paid  to  Shields,  the 
original  grantor.  It  was  held  by  the  bankrupt  court  that,  although  the 
creditors  of  Shields  might  have  attacked  the  deed  as  fraudulent,  yet  as 
between  Shields  and  the  bankrupt  the  deed  was  valid  to  vest  the  title 
in  the  bankrupt,  which  passed  to  his  assignee,  and  not  having  been 
included  in  his  schedules,  the  bankrupt  had,  therefore,  concealed  his 
property.    In  re  O'Bannon,  18  Fed.  Cas.  516;  2  N.  B.  R.  15  (1868). 

Bights  and  Duties. 

A  solvent  debtor  has  the  right  to  pay  any  or  all  his  debts,  notwith- 
standing the  pendency  of  bankruptcy  proceedings  against  him.  In  re 
Oregon  Bulletin  Printing  Pub.  Co.,  13  N.  B.  B.  506;  18  Fed.  Oas.  773 
(1876). 

After  trustees  for  creditors  have  settled  their  trust  and  been  dis- 
charged, and  the  bankrupt  has  been  discharged,  a  su'-plus  of  assets  ap- 
pearing, the  bankrupt  is  entitled  to  it.  Mayer  v.  Gourden,  26  Fed. 
Rep.  742. 

The  right  of  a  bankrupt  to  redeem  land  from  a  sale  for  taxes  is  not 
terminated  until  the  appointment  of  an  assignee.  Hampton  v.  Rouse, 
22  Wall.  263. 

Before  the  appointment  of  an  assignee,  the  bankrupt  is  trustee  of 
his  estate,  and  as  such  can  waive  demand  and  notice  upon  a  note  of 
which  he  was  an  indorser.  Ex  parte  Tremont  National  Bank,  2  Low. 
409;  24  Fed.  Cas.  184. 

Creditors  may  forfeit  their  rights  against  each  other  by  neglect  to 
prove  their  claims;  but  as  long  as  there  are  creditors  unpaid,  the  bank- 
rupt has  no  right  to  demand  any  part  of  the  property.  In  re  Wright, 
6  Bis.  317;  30  Fed.  Oas.  661  (1875);  In  re  Wright,  2  N.  B.  B.  41;  30  Fed. 
Cas.  663  (1868). 


Bankrupts.  99 

Until  the  appointment  of  an  assignee,  a  banlcrupt  has  a  right  to  pursue 
all  proper  legal  measures  for  the  protection  of  his  interests.  Myers  v. 
Oallaghan  et  al.,  5  Fed.  Rep.  726. 

Any  agreement  signed  by  a  bankrupt  after  the  commencement  of  pro- 
ceedings is  a  nullity  so  far  as  the  estate  is  concerned.  In  re  Anderson, 
2  Hughes,  378;  1  Fed.  Oas.  831. 

A  bankrupt  who  has  knowledge  of  the  place  where  his  books  are 
deposited,  and  denies  their  existence,  was  held  chargeable  with  a  con- 
cealment of  his  books,  under  section  29  of  the  Act  of  1867.  In  re  Ham- 
mond et  al.,  1  Low.  381;  11  Fed.  Oas.  380. 

It  Is  improper  for  a  bankrupt  to  sell  any  of  his  property  after  filing 
his  petition,  even  to  raise  money  to  defray  the  costs  of  the  proceed- 
ings.   In  re  Thompson,  13  N.  B.  E.  300;  28  Fed.  Oas.  1021. 

A  bankrupt  was  committed  and  ordered  to  be  detained  until  he  should 
pay  to  the  assignee  the  amount  returned  on  his  schedule  of  assets  as 
"  cash  on  hand."    In  re  Dresser,  3  N.  B.  R.  557;  7  Fed.  Gas.  1069. 

Two  days  before  the  filing  of  his  petition,  the  bankrupt  had  procured 
certain  money  from  a  mortgage.  He  was  ordered  to  pay  it  to  the  as- 
signee, but  allowed  to  retain  the  amount  paid  his  attorney,  and  a  sum 
necessary  for  the  temporary  support  of  himself  and  family  as  provided 
by  the  Act  of  1867,  but  not  the  expenses  of  procuring  his  discharge.  In 
re  Thompson,  13  N.  B.  R.  300;  23  Fed.  Gas.  1021. 

Judge  Blatchford  refused  to  punish  for  contempt,  a  bankrupt  who  had 
collected  money  after  the  filing  of  the  petition,  and  spent  part  of  it, 
but  who  had  afterward  turned  over  all  his  assets  to  the  assignee,  hold- 
ing that  while  he  was  guilty  of  contempt,  the  estate  had  lost  nothing, 
because  payments  made  to  a  bankrupt  by  debtors  after  the  filing  of 
the  petition  were  invalid  against  the  assignee.  In  re  Hayden,  7  N.  B. 
R.  192;  11  Fed.  Oas.  897. 

A  summary  proceeding,  and  not  a  separate  action,  is  the  proper  remedy 
to  compel  a  bankrupt  to  deliver  property  unlawfully  withheld  by  him. 
In  re  Thompson,  13  N.  B.  R.  300;  23  Fed.  Oas.  1021. 

[See  notes  to  §70.] 

Death  ob  Insanity. 

§  8.  Death  or  Insanity  of  Bankrupts. —  (a.)  The  death  or  insanity 
of  a  bankrupt  shall  not  abate  the  proceedings,  but  the  same  shall  be 
conducted  and  concluded  in  the  same  manner,  so  far  as  possible,  as 
though  he  had  not  ;died  or  become  insane:  Provided,  That  in  case  of 
death  the  widow  and  children  shall  be  entitled  to  all  rights  of  dower 
and  allowance  fixed  by  the  laws  of  the  State  of  the  bankrupt's  residence. 

An  assignment  of  the  husband's  estate  under  the  national  Bankrupt 
Act  and  a  sale  thereof  by  the  assignee  in  bankruptcy  in  pursuance  of  an 
order  of  the  court  does  not  bar  the  wife's  right  of  dower.  Porter  v. 
Lazear,  109  U.  S.  84;  In  re  Angler,  10  Amer.  Law  Reg.  190;  1  Fed.  Oas.  914. 


100  The  Bankbuptcy  Law. 

An  assignment  and  sale  of  the  husband's  real  estate  in  banlsruptcy  pro- 
ceedings did  not  bar  the  wife's  right  of  dower  in  sucli  property.  Porter  t. 
Lazear,  109  U.  S.  84. 

The  supreme  court  of  Indiana  having  decided  that  a  deed  to  an  as- 
signee in  banliruptcy  is  a  judicial  sale,  the  court  of  bankruptcy  held  that 
a  wife,  upon  the  bankruptcy  of  her  husband,  becomes  the  owner  of  one- 
third  of  his  equitable  interest  in  land.  Warford  v.  Noble  et  al.,  2  Fed. 
Kep.  202. 

Under  the  laws  of  Indiana,  as  construed  by  the  courts  of  that  state,  a 
wife's  inchoate  right  of  dower  becomes  absolute  upon  the  sale  of  her 
husband's  real  estate  on  execution.  It  was  held  that  an  adjudication  in 
bankruptcy  had  the  same  effect;  and  it  was  further  held  that  this  rule 
does  not  apply  to  land  in  which  the  husband  has  only  an  equitable  title, 
and  that  there  can  be  no  dower  in  such  land.  Warford  v.  Noble  et  al.,  19 
Am.  Law  Reg.  44;  29  Fed.  Oas.  227. 

The  court  held  that  an  insane  person  cannot  commit  an  act  of  bank- 
ruptcy, but  that  a  lunatic  may  be  adjudged  a  bankrupt  for  acts  previously 
done  against  the  opposition  of  his  guardian.  In  re  Weitzel,  7  Biss.  289; 
29  Fed.  Cas.  604. 

While  an  insane  person  cannot  commit  an  act  of  bankruptcy,  he  may 
be  adjudged  a  bankrupt  after  he  has  become  a  lunatic,  for  an  act  com- 
mitted while  sane;  but  Judge  Lowell  expressed  doubt  as  to  whether  a 
discharge  could  be  given  to  an  insane  person.  In  re  Pratt,  2  Low.  96; 
19  Fed.  Cas.  1248. 

[The  law  in  cases  of  death,  under  the  Act  of  1867,  is  stated  in  the 
following  cases:] 

Proceedings  in  bankruptcy  will  be  abated  upon  the  death  of  the  debtor 
between  the  service  of  the  rule  to  show  cause  and  the  adjudication. 
Frazier  et  al.  v.  McDonald,  8  N.  B.  R.  237;  9  Fed.  Cas.  737. 

The  bankrupt  died  after  adjudication,  but  before  taking  the  oath  re- 
quired by  section  29  of  the  Act  of  1867.  The  court  held  that  a  discharge 
could  not  be  granted.    In  re  Quinike,  2  Biss.  354;  20  Fed.  Cas.  142. 

The  bankrupt  died  a  few  months  after  filing  his  petition.  Held,  that 
he  could  not  be  discharged,  as  he  had  not  taken  the  oath  required  by 
section  29  of  the  Act  of  1867.    In  re  Gimke,  4  N.  B.  R.  92;  11  Fed.  Cas.  115. 

A  discharge  in  bankruptcy  cannot  be  adjudged  when  the  bankrupt  dies 
before  making  application  for  discharge  as  prescribed  in  section  29  of  the 
Act  of  1867.    In  re  O'Farrell,  2  N.  B.  B.  484;  18  Fed.  Oas.  601  (1869). 

[See  notes  to  §§  3  and  4.] 

Arrest. 

§  9.  Protection  and  Detention  of  Bankrupts. —  (a.)  A  bankrupt 
shall  be  exempt  from  arrest  upon  ciyil  process  except  in  the  foUowiag 
eases: 

(1.)  When  issued  from  a  court  of  bankruptcy  for  contempt  or  dis- 
obedience of  its  lawful  orders; 


Bankrupts.  101 

(2.)  When  issued  from  a  State  court  having  jurisdiction,  and  served 
within  such  State,  upon  a  debt  or  claim  from  which  liis  discharge  in 
bankruptcy  would  not  be  a  release,  and  in  such  case  he  shall  be  exempt 
from  such  arrest  when  in  attendance  upon  a  court  of  bankruptcy  or 
engaged  in  the  performance  of  a  duty  imposed  by  this  Act. 

(b.)  The  judge  may,  at  any  time  after  the  filing  of  a  petition  by  or 
against  a  person,  and  before  the  expiration  of  one  month  after  the 
qualification  of  the  trustee,  upon  satisfactory  proof  by  the  affidavits  of 
at  least  two  persons  that  such  bankrupt  is  about  to  leave  the  district  in 
which  he  resides  or  has  his  principal  place  of  business  to  avoid  examina- 
tion, and  that  his  departure  will  defeat  the  proceedings  in  bank- 
ruptcy, issue  a  warrant  to  the  marshal,  directing  him  to  bring  such 
bankrupt  forthwith  before  the  court  for  examination.  If  upon  hearing 
the  evidence  of  the  parties  it  shall  appear  to  the  court  or  a  judge 
thereof  that  the  allegations  are  true  and  that  it  is  necessary,  he  shall 
order  such  marshal  to  keep  such  bankrupt  in  custody  not  exceeding 
ten  days,  but  not  imprison  him,  until  he  shall  be  examined  and  released 
or  give  bail  conditioned  for  his  appearance  for  examination,  from  time 
to  time,  not  exceeding  in  all  ten  days,  as  required  by  the  court,  and  for 
his  obedience  to  all  lawful  orders  made  in  reference  thereto. 

Under  the  Act  of  1841,  a  petitioner  in  bankruptcy  was  privileged  from 
arrest  on  civil  process  during  the  proceedings.  U.  S.  v.  Dobbins,  25  Fed. 
Cas.  876  (1842). 

A  writ  of  habeas  corpus  was  denied  to  a  banlirupt  who  was  under  arrest 
on  an  execution  issued  on  a  judgment  for  tort.  In  re  Whitehouse,  1  Low. 
429;  29  Fed.  Cas.  1032. 

Judge  Lowell  held  that  section  26  of  the  Act  of  1867  did  not  release  the 
banlinipt  from  custody  when  he  was  already  in  arrest  at  the  time  his 
petition  was  filed.    In  re  Walker,  1  Low.  222;  29  Fed.  Cas.  1. 

The  bankrupt  having  been  imprisoned  by  proceedings  under  the  law  of 
a  state  to  discover  assets  was  released  on  habeas  corpus  by  a  United  States 
court.    Ex  parte  Taylor,  1  Hughes,  617;  23  Fed.  Cas.  727. 

When  a  cause  of  action  for  a  tort  has  been  reduced  to  judgment,  it  is 
covered  by  a  discharge  in  bankruptcy,  and  a  banltrupt  arrested  upon  such 
a  judgment  will  be  released  by  the  court  of  bankruptcy,  notwithstanding 
the  state  court  had  refused  to  do  so.  In  re  Wiggins,  2  Biss.  71;  29  Fed. 
Cas.  1156. 

A  court  of  bankruptcy  may  order  the  release  of  a  bankrupt  held  in 
custody  by  proceedings  of  arrest  and  bail  under  the  state  laws,  and  stay 
proceedings  until  the  question  of  discharge  is  passed  upon,  and  at  the 
same  time  make  a  reference  to  determine  whether  the  debts  for  which  he 


102  The  Bankruptcy  Law. 

was  arrested  are  such  that  they  would  be  discharged  by  proceedings  in 
bankruptcy.    In  re  Jacoby,  1  N.  B.  R.  118;  13  Fed.  Oas.  279. 

A  bankrupt  had  given  a  bond  for  his  appearance  from  time  to  time, 
but  failed  to  appear  and  furnish  schedules  in  obedience  to  an  order  of 
the  court,  and  left  the  jurisdiction  with  assets  exceeding  the  penalty  of 
the  bond.  It  was  held  that  the  obligee  could  recover  in  an  action  of  debt, 
and  that,  under  the  circumstances,  the  judgment  should  be  for  the  whole 
amount  of  the  bond  and  interest.  Marble  v.  Fulton  et  al.,  1  Hask.  462; 
16  Fed.  Cas.  695. 

A  petition  was  filed  in  the  court  of  bankruptcy  for  a  writ  of  habeas 
corpus  for  the  release  of  the  bankrupt  from  arrest  under  the  order  of  a 
state  court.  Judge  Blatchford  said:  "  I  can  only  examine  the  affidavit 
of  a  plaintiff  on  vyhich  the  order  of  arrest  was  made.  I  have  done  so,  and 
am  satisfied  that  the  state  court  must,  on  that  affidavit,  have  beUeved 
that  the  debt  in  question  vras  created  by  the  fraud  of  the  bankrupt,  or  by 
their  defalcation  while  acting  in  a  fiduciary  character,  and  must  on  that 
account  have  ordered  the  arrest.  The  writ  must  be  discharged,  and  the 
prisoners  be  remanded  to  the  custody  of  the  sheriff."  In  re  Valk,  3  Ben. 
431;  28  Fed.  Cas.  873. 

The  exemption  of  the  bankrupt  from  arrest  on  civil  process  applies 
whether  he  is  arrested  before  or  after  the  commencement  of  proceedings 
in  bankruptcy.    In  re  Seymour,  1  N.  B.  R.  29;  1  Ben.  348  (1867). 

The  object  of  a  creditor  in  imprisoning  a  debtor  on  execution  is  to 
secure  secret  funds  with  which  the  debt  may  be  paid.  The  Bankrupt 
Act  divests  the  bankrupt  debtor  of  all  his  property  for  the  benefit  of  all 
creditors.  A  creditor  may,  therefore,  be  enjoined  from  enforcing  his 
judgment  by  imprisonment.  In  re  Winthrop,  5  Law  Rep.  24;  30  Fed.  Oas. 
375  (1842). 

Under  the  Act  of  1867  the  court  refused  to  discharge  the  bankrupt  from 
arrest  on  the  gi-ound  that  the  debt  was  created  by  fraud,  for  the  reason 
that  a  discharge  in  bankruptcy  would  not  affect  such  an  indebtedness. 
In  re  Pettis,  2  N,  B.  R.  44;  19  Fed.  Cas.  305. 

After  adjudication,  the  bankrupt  was  arrested  in  a  civil  suit  in  a  state 
court  upon  an  affidavit  stating  that  the  suit  was  for  a  debt  created  by  his 
defalcation  while  acting  in  a  fiduciary  capacity.  In  fact,  and  as  appeared 
in  the  complaint,  the  suit  was  for  the  proceeds  of  goods  consigned  to 
him  to  sell  on  commission,  which  he  had  sold,  but  the  proceeds  of  which 
he  had  not  remitted.  On  an  application  to  the  court  of  bankruptcy  to 
discharge  him  from  arrest,  the  court  held  that  it  could  only  look  at  the 
affidavit  on  which  the  order  of  arrest  was  granted  in  the  state  court.  In 
re  Kimball,  2  Ben.  554;  14  Fed.  Cas.  476. 

Certain  creditors  of  the  bankrupt  caused  his  arrest  by  an  order  from 
a  state  court  on  the  gi-ound  that  the  debt  had  been  fraudulently  con- 
tracted. Thereafter  they  proved  their  claim  in  bankruptcy.  The  bank- 
rupt applied  to  the  court  to  have  the  arrest  vacated  and  further  proceed- 
ings enjoined.  The  court  held  that  as  the  debt  was  one  that  would  not 
be  discharged  in  bankruptcy,  the  order  of  arrest  issued  by  the  state  court 


Bankrupts.  103 

could  not  be  vacated;  but  as  the  debt  was  provable  in  bankruptcy,  the 
proceedings  of  the  creditor  in  the  state  court  would  be  stayed  pending 
the  determination  of  the  question  of  discharge.  In  re  Migel,  2  N.  B.  E. 
481;  17  Fed.  Cas.  279. 

[See  notes  to  §§  2  and  11.] 

EXTEADITION. 

§  10.  Extradition  of  Bankrupts. —  (a.)  Whenever  a  warrant  for  the 
apprehension  of  a  bankrupt  shall  have  been  issued,  and  he  shall  have 
been  found  within  the  jurisdiction  of  a  court  other  than  the  one  issuing 
the  warrant,  he  may  be  extradited  in  the  same  manner  in  which  persons 
under  indictment  are  now  extradited  from  one  district  within  which  a 
district  court  has  jurisdiction  to  another. 

The  practice  of  the  state  in  which  the  arrest  is  made  must  be  observed 
in  the  preliminary  examination  of  an  alleged  offender  under  the  Bankrupt 
AiCt  who  is  arrested  in  another  district  for  extradition.  U.  S.  v.  Brawner, 
7  Fed.  Rep.  86. 

Suits  Bt  and  Agaikst  Bankeupts. 

§  11.  Suits  By  and  Against  Bankrupts. —  (a.)  A  suit  which  is 
founded  upon  a  claim  from  which  a  discharge  would  be  a  release,  and 
which  is  pending  against  a  person  at  the  time  of  the  filing  of  a  petition 
against  him,  shall  be  stayed  until  after  an  adjudication  or  the  dismissal 
of  the  petition;  if  such  person  is  adjudged  a  bankrupt,  such  action  may 
be  further  stayed  until  twelve  months  after  the  date  of  such  adjudica- 
tion, or,  if  within  that  time  such  person  applies  for  a  discharge,  then 
until  the  question  of  such  discharge  is  determined. 

(b.)  The  court  may  order  the  trustee  to  enter  his  appearance  and 
defend  any  pending  suit  against  the  bankrupt. 

(c.)  A  trustee  may,  with  the  approval  of  the  court,  be  permitted  to 
prosecute  as  trustee  any  suit  commenced  by  the  bankrupt  prior  to  the 
adjudication,  with  like  force  and  effect  as  though  it  had  been  com- 
menced by  him. 

(d.)  Suits  shall  not  be  brought  by  or  against  a  trustee  of  a  bankrupt 
estate  subsequent  to  two  years  after  the  estate  has  been  closed. 

Stay  of  Proceedings,  etc. 

An  action  on  a  debt  which  is  provable,  whether  it  could  be  covered  by 
a  discharge  or  not,  will  be  stayed  by  the  commencement  of  proceedings 
in  bankruptcy,  provided  final  judgment  has  not  been  entered.  In  re  Van 
Buren,  19  N.  B.  R.  149;  28  Fed.  Cas.  953. 


104  The  Bankhuptcy  Law. 

After  discharge  the  bankruptcy  court  will  not  enjoin  the  prosecution 
of  suits  against  the  bankrupt  in  the  state  court.  He  must  plead  his  dis- 
charge in  the  state  court.    Slayer  v.  Bank,  27  Fed.  Rep.  591. 

Where  there  was  a  suit  pending  against  the  bankrupt  at  the  time  of  the 
adjudication,  it  may  be  prosecuted  against  his  assignee  if  the  court  of 
bankruptcy  does  not  take  steps  to  stay  the  proceedings.  Norton  v. 
Switzer,  93  U.  S.  355. 

Creditors  who  had  sued  out  writs  of  attachment  against  a  debtor  after- 
ward filed  a  petition  in  bankruptcy  against  him.  It  was  held  under  the 
Law  of  1841  that  it  was  not  necessary  for  the  suits  at  law  to  be  with- 
drawn until  it  was  determined  whether  the  petition  could  be  sustained. 
Everett  et  al.  y.  Derby,  5  Law  Rep.  225;  8  Fed.  Gas.  897  (1842). 

An  adjudication  in  bankruptcy  will  not  bar  the  further  prosecution  in 
the  bankrupt's  name  of  a  claim  transferred  more  than  four  months  be- 
fore the  commencement  of  proceedings  to  one  for  whose  benefit  the  suit 
was  brought,  where  his  assignee  in  bankruptcy  consents  thereto. 
Thatcher  v.  Rockwell,  105  U.  S.  467. 

Where  a  levy  has  been  made  under  an  attachment  by  a  state  court 
before  the  commencement  of  proceedings  in  bankruptcy,  and  the  assignee 
thereafter  appointed  permits  the  sale  to  be  made,  he  cannot  attack  the 
purchaser's  title  in  a  collateral  proceeding.    Doe  v.  Childress,  21  Wall.  642. 

A  bankrupt  had  obtained  an  injunction  against  certain  creditors  staying 
all  suits  and  proceedings  to  collect  certain  debts.  Thereupon  the  pending 
suit  was  discontinued,  but  later  a  new  suit  was  brought  for  the  recovery 
of  the  same  debt.  This  was  held  to  be  a  violation  of  the  injunction.  In 
re  Schwarz,  14  Fed.  Rep.  787. 

The  adjudication  in  bankruptcy  relates  back  to  the  filing  of  the  petition 
and  dissolves  from  that  day  an  attachment  previously  levied  and  pending. 
Zeiber  v.  Hill,  1  Sawy.  268;  8  N.  B.  R.  239;  30  Fed.  Cas.  917  (1870). 

Claimants  to  the  property  of  the  bankrupt  living  in  other  districts  hav- 
ing asserted  their  rights  in  state  courts,  it  was  held  that  the  assignee 
might  defend  his  title  in  the  state  courts  by  filing  a  bill  in  the  court  of 
bankruptcy  to  have  the  same  determined,  and  that  the  actions  in  the 
state  courts  be  enjoined.  In  such  a  case,  he  cannot  proceed  by  summary 
petition.     In  re  Litchfield,  13  Fed.  Rep.  863. 

Certain  charges  were  heard  in  opposition  to  the  discharge  of  the  bank- 
rupt, and  overruled,  and  a  discharge  granted.  The  same  matters  con- 
stituted the  cause  of  action  in  a  suit  that  the  assignee  in  bankruptcy  had 
brought  in  a  state  court.  The  defendants  in  the  latter  suit  asked  that  the 
assignee  be  required  to  discontinue  it,  but  the  application  was  refused, 
the  court  saying:  "  It  is  more  proper  that  they  should  be  determined  in 
the  plenary  suit  brought,  if  raised  therein,  and  by  the  tribunal  in  which 
the  suit  is  brought  ^vith  the  provisions  for  review  which  obtain  in  a  suit 
between  party  and  party."    In  re  Penn  et  al.,  5  Ben.  500;  19  Fed.  Cas.  15.o. 

Held,  under  section  5118,  R.  S.,  that  a  special  partner  was  not  entitled 
to  the  stay  of  proceedings  in  an  action  brought  against  him  on  account 
of  proceedings  in  bankruptcy  against  the  firm  and  the  general  members. 
Abbendroth  v.  Van  Dolsen,  131  U.  S.  66. 


Bankrupts.  105 

In  the  case  cited,  the  supreme  court  considered  and  determined  under 
what  circumstances  the  Bankrupt  Act  of  1867  did  not  prevent  a  state 
court  from  rendering  judgment  against  a  defendant  on  a  verdict  in  an 
attachment  suit  so  as  to  permit  the  plaintiff  to  proceed  against  the 
sureties.    Hill  v.  Harding,  130  U.  S.  699. 

The  Act  of  1867  (sections  5106,  5107,  R.  S.)  does  not  permit  a  stay  of 
proceedings  subsequent  to  final  judgment  for  the  purpose  of  putting  in 
motion  the  remedy  of  arrest  which  is  reserved  to  a  creditor.  In  re  Whit- 
ing, 18  N.  B.  R.  563;  29  Fed.  Cas.  1070. 

After  the  issuance  of  an  injunction  in  banlcruptcy  against  the  sale  of 
property  of  the  bankrupt  in  pursuance  of  a  judgment  of  the  state  court, 
the  order  was  modified  so  as  to  permit  the  sheriff  to  sell  and  pay  the 
proceeds  into  the  court  of  bankruptcy.  It  was  held  that  the  judgment 
creditors  could  not  recover  from  the  sheriff  for  his  failure  to  pay  the 
money  to  them  upon  their  execution.    O'Brien  v.  Weld  et  al.,  92  U.  S.  81. 

A  certificate  in  bankruptcy  may  be  pleaded  in  bar  to  further  proceedings 
under  an  attachment  suit  commenced  before  the  filing  of  the  petition.  In 
re  Bellows,  3  Story,  428;  3  Fed.  Oas.  138  (1844). 

When  a  bankrupt  fails  to  obtain-  his  discharge,  an  attaching  creditor 
who  has  been  enjoined  from  further  proceedings  in  his  action  may  apply 
for  the  dissolution  of  the  injunction.  In  re  Bellows,  3  Story,  428;  3  Fed. 
Cas.  138  (1844).  (The  above  case  was  reversed  in  Peck  v.  Jenness,  7 
How.  612,  but  not  on  the  points  here  given.) 

The  assignment  of  a  cause  of  action  for  the  purpose  of  giving  juris- 
diction to  a  federal  court  is  a  fraud  upon  the  court;  but  when  the  de- 
fendant fails  to  make  objection,  and  judgment  is  entered,  and  the 
defendant  subsequently  declared  a  bankrupt,  his  assignee  or  creditors 
cannot  complain  of  the  fraud.    Mattox  v.  Baker,  2  Fed.  Rep.  455. 

A  fraudulent  vendee  of  the  debtor  cannot  maintain  a  suit  in  trover 
against  a  sheriff  who  delivered  to  the  assignee  in  bankruptcy  property 
attached  before  the  bankruptcy  as  that  of  the  debtor;  but  the  district 
court  will  not  enjoin  such  suit  upon  the  petition  of  the  sheriff  since  he 
has  an  adequate  defense  at  law.  In  re  Evans,  1  Low.  525;  8  Fed.  Cas. 
833. 

Injunctions  had  been  granted  by  the  court  of  bankruptcy  against  the 
sale  of  the  bankrupt's  property  under  judgments  obtained  in  good  faith. 
Upon  a  showing  that  the  property  would  not  realize  any  more  upon  a 
sale  by  the  assignee  than  it  would  upon  a  sale  by  the  sheriff,  the  court 
dissolved  the  injunction.    In  re  Wilbur,  1  Ben.  527;  29  Fed.  Oas.  1181. 

A  plaintiff  in  a  state  court  who  is  enjoined  from  proceeding  against  one 
debtor  on  account  of  bankruptcy  may  proceed  against  the  other  defend- 
ant.   Penny  v.  Taylor,  10  N.  B.  R,  200;  19  Fed.  Cas.  194. 

The  comrt  of  bankruptcy  cannot  grant  relief  against  a  judgment  entered 
against  the  bankrupt  in  any  other  court  on  a  debt  arising  before  adjudi- 
cation, when  he  failed  to  plead  his  discharge.  In  re  Ferguson,  2  Hughes, 
286;  8  Fed.  Oas.  1149. 


106  The  Bankeuptct  Law. 

The  Act  of  1867  (section  5106,  R.  S.)  did  not  authorize  the  stay  of 
orderly  methods  for  the  collection  of  taxes.    In  re  Duryee,  2  Fed.  Rep.  68. 

A  debtor  filed  a  petition  in  voluntary  banliruptcy  and  a  petition  for 
composition  at  the  same  time,  but  objected  to  being  adjudged  a  bankrupt. 
Held,  that  the  debtor  was  in  no  position  to  resist,  by  injunction,  proceed- 
ings by  an  attaching  creditor.  In  re  TlfCt,  18  N.  B.  R.  78;  2a  Fed.  Cas. 
1210. 

It  is  competent  for  a  court  of  bankruptcy  to  authorize  a  creditor  to 
proceed  in  the  usual  way  to  collect  his  claim,  if  that  course  seems  to  be 
for  the  best  interests  of  the  estate.  In  re  McGilpon,  3  Biss.  144;  16  Fed. 
Oas.  107. 

In  a  plea  of  abatement  to  an  action  at  law  on  the  ground  of  the  pend- 
ency of  proceedings  in  bankruptcy,,  all  the  jurisdictional  facts  must  be 
set  up.    In  re  Balch,  3  McLean,  221;  2  Fed.  Oas.  503  (1841). 

When  a  creditor  is  allowed  by  the  court  in  bankruptcy  to  proceed  with 
an  action  then  pending,  it  is  not  necessary  that  the  assignee  should  be 
made  a  party,  and  the  judgment  will  be  valid  against  him  without  it. 
In  re  Bonsfield  &  Poole  M.  Ck).,  17  N.  B.  R.  153;  3  Fed.  Oas.  1016. 

The  jurisdiction  of  the  ordinary  tribunals  over  suits  against  a  bank- 
rupt is  not  impaired  except  as  they  may  be  controlled  by  the  bankruptcy 
court  to  carry  out  the  purposes  of  the  act.  In  re  Davis,  1  Saw.  260;  7 
Fed.  Oas.  58. 

A  creditor  may  prosecute  a  suit  to  judgment  for  the  purpose  of  ascer- 
taining the  amount  due,  but  the  judgment  should  disclose  this  purpose. 
In  re  Gallison  et  al.,  2  Low.  72;  9  Fed.  Oas.  1009. 

The  jurisdiction  of  a  state  court  in  a  suit  in  equity  is  not  lost  by  the 
commencement  of  proceedings  in  bankruptcy  more  than  four  months  after 
the  commencement  of  the  suit.    David  v.  Friedlander,  104  U.  S.  570. 

Certain  judgment  creditors  of  the  bankrupt,  after  proving  their  debt, 
commenced  a  suit  in  a  state  court,  setting  up  that  certain  property  which 
stood  in  the  name  of  the  bankrupt's  wife  had  been  paid  for  by  him  in 
fraud  of  his  creditors.  The  court  of  bankruptcy  held  that  proceedings  in 
such  suit  were  stayed  by  section  21  of  the  Act  of  1867,  and  that  the 
creditors,  by  proving  their  debts,  had  waived  their  right  of  action  on 
either  the  judgments  or  the  original  indebtedness.  In  re  Meyers,  2  Ben. 
424;  17  Fed.  Oas.  249. 

A  decree  had  been  obtained  against  the  bankrupt  in  a  state  court,  which 
operated  as  a  lien  upon  his  property.  Held,  that  the  plaintiff  in  that 
action  could  not  proceed  under  a  law  of  the  state  for  the  discovery  of 
assets,  and  must  move  in  the  court  of  bankruptcy.  Ex  parte  Taylor,  1 
Hughes,  617;  23  Fed.  Cas.  727. 

A  judgment  from  which  an  appeal  has  been  taken  was  held  not  to  be 
a  final  judgment  within  the  meaning  of  section  21  of  the  Act  of  1867.  The 
prosecution  of  such  a  case  is  forbidden,  and  a  motion  to  compel  a  banlt- 
rupt  to  furnish  additional  security  on  the  appeal  bond  is  within  the  con- 
templation of  the  inhibition.  In  re  Metcalf  et  al.,  2  Ben.  78;  17  Fed. 
Oas.  172. 


Bankhupts.  107 

While  a  vessel  was  In  the  hands  of  an  assignee  in  bankruptcy,  it  was 
libelled  to  recover  damages  for  a  collision  which  occurred  before  adjudi- 
cation. The  libellants  were  enjoined  from  attempting  to  hold  the  vessel; 
and  it  was  held  that  their  lien  must  be  determined  in  the  court  of  bank- 
ruptcy.   In  re  People's  Mail  Steamship  Co.,  a  Ben.  226;  19  Fed.  Oas.  211. 

In  Georgia,  where  a  mortgage  is  merely  a  security,  the  power  of  sale 
contained  in  such  an  instrument  cannot  be  executed  after  an  adjudication 
in  bankruptcy  against  the  mortgagor.  Lockett  v.  Hill  et  al.,  1  Woods,  552; 
15  Fed.  Gas.  744. 

An  attachment  had  been  levied  on  the  bankrupt's  property  within  four 
months  before  the  filing  of  the  petition  and  after' the  commencement  of 
bankruptcy  proceedings  the  property  was  sold.  The  purchaser  filed  a 
creditor's  bill  to  set  aside  two  previous  conveyances.  The  court  dismissed 
the  bill  with  costs,  holding  that  the  attachment  was  dissolved  by  the 
commencement  of  proceedings.    Hatfield  v.  MoUer  et  al.,  4  Fed.  Rep.  717. 

A  judgment  for  a  debt  created  by  fraud  was  held  not  to  be  covered  by 
a  discharge  under  the  provisions  of  secion  21  of  the  Act  of  1867.  In  re 
Robinson,  6  Blatchf.  253;  20  Fed.  Oas.  978. 

"  A  discharge  In  bankruptcy  is  valid,  in  the  absence  of  fraud,  in  what- 
ever court  of  the  United  States  a  suit  is  brought,  although  it  may  not 
protect  the  defendant  from  a  suit  brought  in  a  foreign  jurisdiction,  if 
he  should  be  found  therein."    Ruiz  v.  Bickerman,  5  Fed.  Rep.  790. 

A  discharge  in  bankrupcy  granted  in  the  United  States  is  a  bar  to 
proceedings  on  a  debt  contracted  abroad  unless  the  debtor,  being  a  non- 
resident, comes  to  this  country  for  the  purpose  of  evading  his  debts  by 
means  of  such  discharge.  Zaregas'  Case,  4  Law  Rep.  480;  30  Fed.  Gas. 
916  (1842). 

A  debt  having  been  discharged  by  proceedings  in  bankruptcy  can  only 
be  revived  by  a  promise  to  pay,"  and  such  promise  must  be  distinct  and 
unequivocal.    Allen  v.  Fergerson,  18  Wall.  1. 

A  final  discharge  was  held  to  terminate  an  injunction  staying  proceed- 
ings against  the  bankrupt  in  a  state  court  until  the  question  of  final 
discharge  should  be  determined,  and  no  motion  to  dissolve  the  injunction 
is  necessary.    In  re  Thomas,  3  N.  B.  R.  38;  23  Fed.  Gas.  932. 

The  bankrupt  court  will  allow  a  suit  pending  in  a  state  court  against 
the  bankrupt  to  proceed  to  judgment;  but  on  motion  will  stay  execution 
if  it  appear  that  the  judgment  debt  is  such  as  may  be  discharged  in  bank- 
ruptcy. In  re  Rundle,  2  N.  B.  R.  113;  1  Chi.  Leg.  News,  30;  21  Fed.  Cas. 
5  (1868). 

When  a  debtor  is  adjudged  a  bankrupt,  all  proceedings  in  the  state 
court  against  him  must  stop  if  the  subject-matter  of  the  suit  can  be 
proven  against  his  estate  in  bankruptcy,  and  no  creditor  can  enforce  a 
secured  or  unsecured  debt  (so  provable  in  bankruptcy),  in  a  state  court 
except  by  permission  of  the  district  court.  A  district  court  has  no  juris- 
diction over  a  state  court  but  has  complete  original  jurisdiction  of  the 
bankrupt,  of  his  assets  and  of  all  his  creditors.  In  re  Winn,  1  N.  B.  R. 
499;  30  Fed.  Oas.  303  (1867). 


108  The  Bankkuptct  Law. 

Certain  mortgaged  premises  of  a  bankrupt  were  worth  less  than  half 
the  amount  of  the  mortgage  which  was  given,  in  good  faith,  long  before 
the  baaliruptcy  of  the  mortgagor.  After  the  filing  of  the  petition,  the 
mortgagee  commenced  a  suit  in  a  state  court  to  foreclose.  The  district 
court  permitted  the  suit  to  proceed,  and  the  circuit  court,  on  a  petition 
of  review,  affirmed  the  action  of  the  court  below.  At  the  same  time,  the 
circuit  court  held  that  where  the  value  of  the  property  exceeds  the  amount 
secured  by  the  mortgage,  or  the  validity  of  the  lien  is  in  doubt,  it  Is  proper 
for  the  banlirupt  court  to  restrain  the  mortgagee  from  foreclosing.  In  re 
Iron  Mountain  Co.,  9  Blatchf.  320;  18  Fed.  Cas.  97 

After  adjudication,  mortgagees  should  be  required  to  enforce  their 
claims  in  the  court  of  banliruptcy.  They  may  be  permitted,  however,  to 
proceed  in  a  state  court.    In  re  Brinliman,  7  N.  B.  R.  421;  4  Fed.  Cas.  145. 

It  was  held  under  the  Act  of  1841  that  when  a  suit  was  brought  in  the 
name  of  the  bankrupt  after  the  appointment  of  an  assignee,  the  defend- 
ant could  plead  the  bankruptcy  in  abatement.  Cook  et  al.  v.  Lansing,  3 
McLean,  571;  6  Fed.  Cas.  412  (1847). 

An  assignee  in  bankruptcy  having  voluntarily  submitted  to  the  juris- 
diction of  a  state  court,  it  was  held  to  be  too  late  for  him  to  object  that 
the  federal  courts  alone  had  jurisdiction  after  judgment  had  been  ren- 
dered against  him.    Scott  v.  Kelly,  22  Wall.  57. 

When  an  assignee  in  bankruptcy  appears  in  a  suit  brought  in  a  state 
court,  he  is  bouad  by  the  decree,  and  cannot  afterward  assert  his  title  in 
another  court.    David  v.  Friedlander,  104  TJ.  S.  570. 

It  was  held  that  it  is  the  duty  of  state  courts  to  admit  the  assignee  as 
a  party,  in  all  suits  pending,  in  place  of  the  bankrupt,  on  production  of 
the  appointment  as  assignee  properly  authenticated;  also,  that  the  bank- 
rupt may  be  enjoined  by  the  bankruptcy  court  from  any  further  inter- 
ference with  such  suits  beyond  furnishing  serviceable  information  to  the 
assignee.  Sampson  v.  Burton,  4  N.  B.  R.  1;  21  Fed.  Cas.  297  (1870);  5  N. 
B.  R.  459;  21  Fed.  Oas.  308  (1871). 

In  a  case  where  proceedings  to  foreclose  a  mortgage  against  the  bank- 
rupt were  commenced  before  adjudication,  it  was  held  that  it  was  not 
necessary  to  make  the  mortgagor's  assignee  in  bankruptcy  a  defendant, 
though  such  assignee  might  be  made  a  party  on  his  own  petition  for 
sufficient  reasons.    Oliver  v.  Cunningham  et  al.,  6  Fed.  Rep.  60. 

Before  the  filing  of  proceedings  in  bankruptcy  in  the  district  court  of 
Pennsylvania,  a  suit  had  been  commenced  in  Minnesota  against  one  of 
the  bankrupts  to  recover  damages  for  breach  of  a  contract.  The  court 
authorized  the  suit  in  Minnesota  to  proceed  for  the  purpose  of  liquidating 
the  claim,  at  the  same  time  securing  to  the  trustee  a  right  to  resist  the 
claim  there  in  the  pending  suit  or  by  a  proceeding  in  equity.  In  re  Cooke 
et  al.,  6  Fed.  Cas.  431. 

.Judge  Ohoate  expressed  the  opinion  that  an  assignee  is  not  bound  by 
the  allegations  of  the  creditors'  petition  as  to  an  act  of  bankruptcy. 
Linder  v.  Lewis  et  al.,  10  Ben.  49;  15  Fed.  Cas.  554. 

It  was  held  that  notwithstanding  an  attachment  had  been  issued  more 
than  four  months  prior  to  the  filing  of  the  petition  in  bankruptcy,  the 


Bankbupts.  109 

state  court  can,  on  the  application  of  tlie  banlirupt,  stay  proceedings 
against  him  on  a  provable  debt  to  await  a  determination  on  the  question 
of  his  discharge.    Hill  v.  Harding,  107  U.  S   631. 

An  assignee  in  bankruptcy  cannot  voluntarily,  or  by  service  of  process, 
become  party  to  a  suit  in  a  state  court  affecting  liens  on  the  banlirupt's 
lands  without  the  consent  of  the  federal  court.  Price  v.  Price,  48  Fed. 
Rep.  823. 

The  bankrupt  having  litigated  five  years  in  the  state  court,  the  bank- 
ruptcy court  will  not  enjoin  the  execution  of  a  decree  of  that  court  on  the 
ground  that  the  assignee  In  bankruptcy  was  made  a  party  without  leave 
of  the  federal  court.    Price  v.  Price,  48  Fed.  Rep.  82S. 

[See  notes  to  §2.] 

Limitation  of  Actions. 

A  cause  of  action  is  not  barred  by  the  two  years'  limitation  when  It 
has  been  fraudulently  concealed  until  within  two  years.  Shainwald  v. 
Davids,  69  Fed.  Rep.  687. 

The  statute  of  limitations  under  the  Act  of  1867  (section  5067,  R.  S.), 
begins  to  run  from  the  time  when  the  assignee  could  have  discovered  the 
fraud  by  the  use  of  due  diligence.  Andrews  v.  Dole,  1  Dill.  108;  1  Fed. 
Cas.  878. 

Suit  to  set  aside  a  bankrupt's  deed  is  barred  by  the  two.  years'  limitation 
as  against  a  subsequent  assignee,  the  first  assignee  having  been  Informed 
of  all  the  facts  and  having  died  without  taking  action  thereon.  Scott  v. 
Little,  76  Fed.  Rep.  563. 

The  first  assignee  having  died,  the  new  assigneee  cannot  plead  the 
statute  of  limitations  as  a  bar  to  a  claim  on  a  note  given  by  himself  to 
his  predecessor.    In  re  Newcomb,  32  Fed.  Rep.  826. 

Held,  that  section  5057,  R.  S.,  applied  as  well  to  suits  by  the  assignee 
as  to  suits  against  him.    Adams  v.  Collier,  122  XJ.  S.  & 

A  bankrupt  upon  his  examination  refused  to  answer  certain  questions 
on  the  ground  that  his  answers  might  criminate  him.  This  was  held  not 
^o  be  such  notice  to  the  assignee  in  bankruptcy  of  the  fraud  as  would 
start  the  running  of  the  statute  of  limitations.  Rosenthal  v.  Walker,  111 
U.  S.  105. 

The  limitation  as  to  suits  by  or  against  an  assignee  in  bankruptcy  re- 
lates to  parties  other  than  the  bankrupt.  Phelps  v.  McDonald,  99  U. 
S.  298. 

Held,  that  the  limitation  in  section  5057,  R.  S.,  in  an  action  to  redress 
a  fraud  does  not  begin  to  run  until  the  fraud  is  discovered.  Rosenthal 
V.  Walker,  111  U.  S.  185. 

Held,  that  section  5057,  R.  S.,  applied  only  to  suits  respecting  property 
of  the  bankrupt  which  came  into  the  hands  of  the  assignee  to  which 
adverse  claims  existed  before  assignment.  Dushane  v.  IJeall,  161  V.  S. 
513. 

In  the  case  cited,  the  supreme  court  decided  under  what  circumstances 
the  right  of  action  of  a  plaintiff  under  a  purchase  from  an  assignee  In 


110  The  Bankruptcy  Law. 

bankruptcy  to  redeem  from  a  sale  under  a  deed  of  trust  was  barred  by 
the  limitation  of  the  Act  of  1867.    Greene  v.  Taylor,  132  U.  S.  415. 

Where  an  assignee  in  bankruptcy  conveyed  the  bankrupt's  interest  In 
real  estate,  which  was  in  the  possession  of  another  under  claim  of  title, 
two  years  after  the  cause  of  action  in  the  assignee  accrued,  it  was  held 
that  the  rights  of  the  purchaser  equally  with  those  of  the  assignee  were 
barred  by  section  5057,  R.  S.    Wisner  v.  Brown,  122  tl.  S.  314. 

A  supplementary  bill  against  an  assignee  in  bankruptcy  set  up  no  new 
cause  of  action,  but  only  matters  in  support  of  an  estoppel.  It  was  held 
that  this  was  not  subject  to  the  limitation  of  section  5067,  R.  S.  Jenkins 
V.  International  Bank,  127  U.  S.  484. 

An  assignee  had  proceeded  in  the  court  of  bankruptcy  to  determine  the 
title  to  certain  property,  but  dismissed  the  proceedings  without  the  con- 
sent of  the  defendants.  Later,  he  filed  a  bill  in  equity  in  the  circuit  court 
for  the  same  purpose.  Held,  that  in  applying  section  5057,  R.  S.,  the 
latter  proceeding  was  to  be  regarded  as  a  continuation  of  the  former. 
Adams  v.  Collier,  122  U.  S.  382. 

The  bar  of  the  statute  of  limitations  in  the  Bankrupt  Act  of  1867  was 
held  not  to  be  removed  by  mere  ignorance  of  the  existence  of  a  cause  of 
action  by  the  assignee.  Avery  v.  Cleary,  133  U.  S.  604;  Oleary  v.  Ellis 
Foundry  Co.,  id.  612. 

Held,  that  the  rights  of  a  purchaser  of  the  bankrupt's  interest  in  real 
estate  from  an  assignee  in  bankruptcy  were  subject  to  the  limitation  of 
section  5057,  R.  S.    Wisner  v.  Brown,  122  U.  S.  214. 

Held,  that  under  the  limitation  of  section  5057,  R.  Si,  in  an  action 
against  the  assignee  of  a  bankrupt,  he  will  be  chargeable  with  con- 
structive notice  of  any  concealment  of  fraud  by  the  bankrupt.  Oook  v. 
Sherman,  20  Fed.  Rep.  167. 

Held,  that  the  statute  of  limitations  in  a  bankruptcy  act  must  be  taken 
advantage  of  by  demurrer  or  answer  or  it  will  be  waived.  Bartles  v. 
Gibson,  17  Fed.  Rep.  293. 

The  statute  of  limitations  applies  to  a  suit  by  an  assignee  in  bankruptcy 
to  recover  land  fraudulently  claimed  and  retained  by  the  bankrupt  as  a 
homestead.    Leech  v.  Dawson,  23  Fed.  Rep.  654. 

A  pledgee  of  stock  to  secure  an  unliquidated  demand  has  not  such 
adverse  interest  as  will  require  suit  to  be  brought  therefor  by  the  assignee 
within  two  years.    Maynard  v.  Tilden,  28  Fed.  Rep.  688. 

The  limitation  of  two  years  to  suits  by  or  against  the  assignee  does  not 
apply  to,  or  limit  the  jurisdiction  of  the  bankruptcy  court  in  proceedings 
to  adjust  priorities  or  determine  specific  claims  to  property  in  its  custody 
or  control.    In  re  Anderson,  23  Fed.  Rep.  482. 

The  statute  of  limitations  does  not  apply  to  proceedings  by  the  assignee 
against  the  bankrupt  to  recover  assets  omitted  from  his  schedule.  Thomas 
V.  Blythe,  55  Fed.  Rep.  961. 

Held,  that  the  limitation  of  actions  in  the  Law  of  1867  applied  to  all 
judicial  controversies  between  the  assignee  and  an  adverse  party.  Bally 
V.  Glover,  21  Wall.  842. 


Bankhupts.  Ill 

Section  8  of  the  Act  of  1841  related  only  to  suits  against  persons  having 
claims  to  property  surrendered  by  the  bankrupt.  Clark  v.  Clark,  17 
How.  315. 

Held,  that  the  limitation  In  the  Act  of  1841  (section  8)  did  not  apply  to 
suits  by  assignees  or  other  grantees  of  real  estate  until  two  years  after 
adverse  possession.    Banks  v.  Ogden,  2  Wall.  57. 

An  action  by  an  assignee  in  bankruptcy  to  recover  a  debt  is  within  the 
limitation  of  section  5057,  R.  S.,  as  well  as  a  controversy  concerning 
property.    Jenkins  v.  International  Bank,  106  U.  S.  571. 

A  writ  of  error  to  a  judgment  rendered  in  a  state  court  against  the 
bankrupt  shortly  before  adjudication  was  held  to  be  a  suit  within  section 
5057,  R.  S.     Ibid. 

Section  5057,  R.  S.,  was  held  in  the  case  cited  not  to  be  jurisdictional, 
but  a  statute  of  limitations  only.     Upton  v.  McLaughlin,  105  tJ.  S.  640. 

In  law  and  in  equity,  the  limitation  of  an  action  to  redress  a  fraud  do 
not  begin  to  run  until  the  discovery  of  the  fraud.     Bally  v.  Glover,  21 
Wall.  342. 

Where  an  assignee  in  bankruptcy  had  obtained  possession  of  securities 
held  by  a  creditor,  an  action  to  recover  them  must  be  brought  within  two 
years  from  the  time  when  such  possession  commenced,  unless  they  were 
delivered  upon  some  condition  or  agreement.    Doe  v.  Hyde,  114  U.  S.  247. 

In  a  suit  by  an  assignee  in  bankruptcy  to  obtain  redress  against  a  fraud 
concealed  by  the  defendant,  or  secret  from  its  nature,  the  statute  of 
limitations  does  not  begin  to  run  until  the  discovery  of  the  fraud.  Rosen- 
thal V.  Walker,  111  U.  S.  185. 

Where  a  defendant  failed  to  plead  the  bar  of  the  statute  of  limitations 
in  an  action  by  an  assignee  in  bankruptcy,  it  was  held  that  he  could  not 
do  so  in  the  appellate  court.    Upton  v.  McLaughlin,  106  U.  S.  640: 

It  was  held  that  the  Bankrupt  Act  (1867),  and  not  the  law  of  the  state 
where  the  proceedings  are  had,  fixes  the  time  within  which  a  preference 
can  be  set  aside.    In  re  Hamlin  et  al.,  8  Biss.  122;  11  Fed.  Oas.  869. 

More  than  two  years  after  the  cause  of  action  accrued,  an  assignee  in 
bankruptcy  brought  suit  against  persons  who  had  received  money  as 
counsel  fees  from  the  bankrupts  without  authority  at  law.  The  action 
was  held  to  be  barred  by  section  5067,  R.  S.  Miltenberger  et  al.  v. 
Phillips,  2  Woods,  115;  17  Fed.  Oas.  424. 

In  the  case  of  a  suit  by  an  assignee  to  collect  from  stockholders  upon 
unpaid  subscriptions,  the  statute  of  limitations  begins  to  run  from  the 
execution  of  the  debt  of  assignment,  and  not  from  the  date  of  the  assess- 
ment on  the  stock  by  the  bankruptcy  court.  Payson  v.  Coffin,  5  Dill.  473; 
19  Fed.  Gas.  18. 

The  limitation  of  two  years  under  the  Act  of  1867  (section  5057,  R.  S.), 
applied  to  an  action  by  the  assignee  to  collect  assets  as  well  as  to  suits 
relating  to  specific  property.  Payson  v.  Coffin,  4  Dill.  386;  5  id.  573;  19 
Fed.  Gas.  18. 

That  the  assignee  did  not  know  of  his  right  to  certain  assets  of  the 
bankrupt  until  after  the  two  years'  limitation  had  expired  does  not  affect 
the  bar  of  limitation.    Norton  v.  De  La  Villebeuve,  18  Fed.  Gas.  417. 


113  The  Bankeuptcy  Law. 

On  all  matured  claims  and  demands  the  cause  of  action  accrues  to  the 
assignee  at  the  date  of  the  assignment;  all  others  from  their  maturity  or 
at  the  time  when  an  action  will  lie,  and  under  the  Act  of  1867  he  must  sue 
within  two  years  from  these  dates  respectively.    Ibid. 

A  trustee  in  bankruptcy  had  secured  a  decree  setting  aside  a  general 
assignment  for  the  benefit  of  creditors.  Later,  he  brought  suit  to  re- 
cover from  a  third  party  money  in  his  possession,  the  title  to  which  had 
passed  to  the  voluntary  assignee.  Held,  under  the  Act  of  1867  (section 
5057,  R,  S.),  that  the  cause  of  action  had  not  accrued  until  the  entry  of  the 
decree  setting  aside  the  assignment.  Tappan  v.  Whittemore  et  al.,  15 
Blatchf.  440;  23  Fed.  Cas.  685. 

The  banlirupt  had  concealed  from  the  assignee  the  facts  attending  a 
certain  transaction,  and  the  latter  had  no  linowledge  of  them  until  within 
three  months  before  the  bringing  of  the  suit  It  was  held  that  the  statute 
of  limitations  in  section  2  of  the  Act  of  1867  did  not  bar  the  action.  Tyler 
V.  Angevine,  15  Blatchf.  536;  24  Fed.  Cas.  458. 

Held,  under  the  Act  of  1867,  that  a  suit  by  an  assignee  to  collect  claims 
must  be  brought  within  two  years  from  the  time  when  the  cause  of  action 
accrued  to  the  assignee;  and  that  when  the  assignee  filed  his  complaint 
within  two  years,  but  the  summons  was  not  issued  or  served  until  more 
than  two.  years,  the  action  was  barred.  Walker  v.  Towner,  4  Dill.  165;  29 
Fed.  Cas.  57. 

The  petition  in  bankruptcy  was  filed  December  31,  1868,  and  an  assignee 
appointed  April  1,  1869.  The  latter  brought  suit  on  a  debt  which  accrued 
February  5,  1867.  The  court  held  that  the  limitation  of  two  years  in  sec- 
tion 2  of  the  Act  of  1867  did  not  apply.  Smith  v.  Crawford,  6  Ben.  497; 
22  Fed.  Cas.  489. 

The  doctrine  of  equity  that  a  statute  of  limitations  cannot  be  made  use 
of  to  carry  out  a  fraud  does  not  apply  to  a  preferred  creditor  who  con- 
ceals the  transaction  from  other  creditors.  Anibal  v.  Heacock,  2  Fed. 
Rep.  169. 

The  wife  of  one  of  the  bankrupts  presented  a  petition  asking  that  she 
be  paid  a  royalty  upon  a  copyright  of  certain  books  sold  by  the  assignee 
in  bankruptcy.  The  assignee  defended  on  the  ground  that  the  copyright 
was  transferred  to  her  by  her  husband  in  fraud  of  his  creditors.  Held, 
that  he  was  not  barred  from  setting  up  this  defense  because  he  had  not 
proceeded  by  suit  within  two  years  to  recover  the  copyright,  or  to  have 
the  transfer  set  aside.    In  re  English  et  al.,  6  Fed.  Rep.  276. 

Under  the  Act  of  1867  a  suit  might  be  brought  by  the  assignee  within 
two  years  after  his  election  if  the  cause  of  action  existed  at  the  time  of 
the  filing  of  the  petition.  Trustees  of  M.  B.  F.  &  D.  S.  Co.  v.  Bosseiux 
et  al.,  3  Fed.  Rep.  817. 

One  of  three  assignees  in  bankruptcy,  who  was  indebted  to  the  bank- 
rupt, died.  It  was  held  that  the  statute  of  limitations  (section  5057,  R.  S.) 
did  not  begin  to  run  until  the  death  of  the  assignee  as  to  the  action 
brought  by  his  coassignees  to  recover  the  claim  from  his  representatives. 
Doty  et  al.  v.  Johnson  et  al.,  6  Fed.  Rep.  481. 


Bankeupts.  113 

A  creditor  filed  a  petition  to  be  paid  from  the  proceeds  of  the  sale  of  a 
vessel  a  lien  for  supplies  and  repairs.  Held,  that  this  was  substantially 
a  suit,  and  was  covered  by  section  5057,  R.  S.  In  re  Ohurchman  et  al., 
5  Fed.  Rep.  181. 

Where  the  administrator  of  a  decedent  claims  the  proceeds  of  certain 
stocks  In  the  hands  of  an  assignee  In  banliruptcy,  exceeding  $5,000  in 
value,  his  remedy  is  a  suit  at  law  or  In  equity,  and  not  a  summary  pro- 
ceeding; and  such  an  action  was  held  to  be  within  the  two  years'  limita- 
tion of  section  5057.    In  re  Staib  et  al.,  3  Fed.  Rep.  209. 

The  statute  of  limitations  Is  applicable  in  national  as  in  state  courts, 
and  the  limitation  provision  in  the  Banlsrupt  Act  applies  to  all  judicial 
controversies  between  the  assignee  in  behalf  of  the  bankrupt's  estate  and 
any  person  whose  Interest  is  adverse.  In  re  Scovill,  4  OllfC.  549;  21  Fed. 
Cas.  856  (1878). 

A  bill  In  equity  by  an  assignee  in  bankruptcy  to  set  aside  a  conveyance 
•by  the  bankrupt  on  the  ground  of  a  secret  fraud  is  demurrable  In  the 
absence  of  an  allegation  that  the  fraud  was  discovered  within  the  time 
allowed  by  the  statute  of  limitations  to  avoid  the  bar.  Lichtenauer  v. 
Caieeny  et  al.,  8  Fed.  Rep.  876. 

Held,  under  the  Act  of  1867,  that  where  the  bankrupt  had  concealed 
certain  bonds,  the  statute  of  limitations  did  not  begin  to  run  against  his 
assignee  in  bankruptcy  until  the  discovery  of  the  fraud.  Martin  v. 
Fullings,  3  Fed.  Rep.  206. 

The  two  years'  limitation  under  the  Act  of  1867,  between  an  assignee 
and  a  person  claiming  adverse  interest,  does  not  apply  In  case  of  a  fraud- 
ulent dormant  judgment  until  two  years  after  steps  have  been  taken  to 
establish  the  judgment  lien.    Lehman  v.  LaForge,  42  Fed.  Rep.  498. 

When  tax  deeds  were  obtained  and  recorded  after  the  lands  had  vested 
In  the  assignee  in  bankruptcy  under  the  assignment,  a  suit  by  the  as- 
signee to  set  aside  the  deeds  commenced  more  than  two  years  after  the 
making  and  recording  of  the  deeds  could  not  be  maintained.  Section  5057, 
R.  S.    Harvey  v.  Gage,  31  Fed.  Rep.  275. 

Where  an  assignee  in  bankruptcy  refused  to  assume  ov^nership  of  a 
right  of  action  existing  in  the  bankrupt,  the  right  of  action  by  a  purchaser 
from  the  bankrupt  Is  governed  by  the  general  statute  of  limitations  and 
not  by  section  5057,  R.  S.    Sessions  v.  Romada,  145  U.  S.  29. 

When  an  assignee  in  bankruptcy  had,  at  the  time  of  his  appointment, 
information  which  would  have  led  to  a  discovery  of  facts  constituting  the 
fraud  on  which  the  cause  of  action  was  based,  it  was  held  that  suit 
thereon  two  years  later  was  barred  by  the  limitation  of  section  5057, 
R.  S.    Yancy  v.  Oothran,  32  Fed.  Rep.  687. 

Held,  that  the  statute  of  limitations  of  the  state  of  New  York  against 
suits  to  set  aside  fraudulent  conveyances  applied,  and  began  to  run, 
against  the  assignee  in  bankruptcy  at  the  same  time  that  it  commenced 
to  run  against  the  creditors.    Jones  v.  Smith,  38  Fed.  Rep.  380. 

A  fraudulent  agreement  was  made  by  the  bankrupt  and  a  third  party 
by  which  composition  was  procured,  and  the  assignee  ordered  by  the  court 

8. 


114  The  Bankeuptct  Law. 

to  convey  property  to  such  party.  The  compromise  was  afterward  set 
aside.  Held,  that  the  time  the  compromise  remained  In  force  should 
be  deducted  in  determining  the  period  of  limitation  under  section  5057, 
R.  S.    Fairbanks  v.  Bank,  38  Fed.  Rep.  630. 

The  court  here  decided  what  constituted  sufficient  information  as  to  a 
trust  deed  and  its  contents  to  put  the  assignee  in  bankruptcy  on  Inquiry. 
Greene  v.  Taylor,  132  XJ.  S.  415. 

The  limitation  in  section  3  of  the  Act  of  1867  was  held  to  apply  only 
to  property  held  adversely  to  a  bankrupt  or  his  assignee.  Davis  v. 
Anderson  et  al.,  6  N,  B.  R.  145;  7  Fed.  Oas.  103. 

The  statute  of  limitations  does  not  begin  to  run  until  the  fraud  Is  dis- 
covered as  to  an  action  to  recover  property  concealed  by  the  party,  or 
for  redress  against  a  fraud  which,  by  Its  nature,  remains  a  secret. 
FuUings  V.  FuUlngs,  3  N.  J.  L.  J.  270;  9  Fed.  Cas.  991. 

An  assignee  in  bankruptcy  sought  to  recover  certain  property,  or  the 
proceeds  thereof,  from  a  third  person  to  whom  it  was  alleged  they  were 
fraudulently  transferred.  The  latter  opposed  the  proceedings  on  the 
ground  that  the  amount  claimed  by  the  assignee  was  larger  than  he  was 
liable  for,  and  also  on  account  of  a  claim  for  services,,  which  was  dis- 
puted by  the  assignee.  The  court  decided  that  he  was  not  a  "  person 
claiming  an  adverse  interest  touching  the  property  and  rights  of  property 
of  such  bankrupt,"  within  the  meaning  of  section  2  of  the  Act  of  1867. 
In  re  Krogman,  5  N.  B.  R.  116;  14  Fed.  Cas.  866. 

A  petition  to  recover  certain  property  and  books  of  account  alleged  to 
have  been  fraudulently  transferred  was  held  to  be  "  a  suit  at  law  or  in 
equity "  within  the  meaning  of  section  2  of  the  Act  of  1867,  fixing  a 
limitation  on  such  suits.    In  re  Krogman,  5  N.  B.  R.  116;  14  Fed.  Cas.  866. 

Under  the  Act  of  1867  the  limitation  of  the  time  for  the  commencement 
of  actions  by  an  assignee  in  bankruptcy  began  to  run  from  the  time  of 
his  appointment.    Bank  v.  Sherman,  101  tl.  S.  403. 

An  action  for  the  recovery  of  insurance  money  was  held  to  be  barred 
by  section  5057,  R.  S.,  notwithstanding  the  bankrupt  had  omitted  to  dis- 
close that  the  policies  hacl  been  taken  out  and  assigned  before  bankruptcy 
to  a  trustee  for  his  daughters.  Avery  v.  Cleary,  132  U.  S.  604;  Cleary  v. 
Ellis  Foundry  Co.,  id.  612. 

Section  8  of  the  Act  of  1841,  fixing  a  two  years'  limitation  for  suits  by 
or  against  an  assignee  in  bankruptcy,  was  held  to  apply  only  to  suits 
growing  out  of  disputes  In  respect  to  property  rights  of  the  bankrupt 
which  came  into  the  hands  of  the  assignee,  and  to  have  no  reference  to 
suits  growing  out  of  the  dealings  of  the  assignee  with  the  property  after 
It  came  into  his  hands.    In  re  Oonant,  5  Blatchf.  54;  6  Fed.  Cas.  257. 

[See  notes  to  §§  2,  47  and  70.1 
[For;  an  important  opinion,  affirming  tlie  autliority  of  the  district  court  under  the  Act 
of  1898  to  ^rant  an  injunction  against  the  sale  of  property  under  the  process  of  a  State  court 
until  a  petition  in  hanlcruptcy  can  be  filed  against  tne  debtor,  see  notes  to  section  71.] 

Compositions. 

§  12.  Compositions,  when  Confirmed.—  (a.)  A  bankrupt  may  offer 
terms  of  composition  to  his  creditors  after,  but  not  before,  he  has  been 
examined  in  open  court  or  at  a  meeting  of  his  creditors  and  filed  in 


Bankrupts.  115 

court  the  schedule  of  his  property  and  lists  of  his  creditors,  required  to 
be  filed  by  bankrupts. 

(b.)  An  application  for  the  confirmation  of  a  composition  may  be 
filed  in  the  court  of  bankruptcy  after,  but  not  before,  it  has  been  ac- 
cepted in  writing  by  a  majority  in  number  of  all  creditors  whose  claims 
have  been  allowed,  which  number  must  represent  a  majority  in  amount 
of  such  claims,  and  the  consideration  to  be  paid  by  the  bankrupt  to  his 
creditors,  and  the  money  necessary  to  pay  all  debts  which  have  priority 
and  the  cost  of  the  proceedings,  have  been  deposited  in  such  place  as 
shall  be  designated  by  and  subject  to  the  order  of  the  judge. 

(c.)  A  date  and  place,  with  reference  to  the  convenience  of  the 
parties  in  interest,  shall  be  fixed  for  the  hearing  upon  each  application 
for  the  confirmation  of  a  composition,  and  such  .objections  as  may  be 
made  to  its  confirmation. 

(d.)  The  judge  shall  confirm  a  composition  if  satisfied  that 

(1.)  It  is  for  the  best  interests  of  the  creditors; 

(8.)  The  bankrupt  has  not  been  guilty  of  any  of  the  acts  or  failed  to 
perform  any  of  the  duties  which  would  be  a  bar  to  his  discharge;  and 

(3.)  The  offer  and  its  acceptance  are  in  good  faith  and  have  not  been 
made  or  procured  except  as  herein  provided,  or  by  any  means,  promises, 
or  acts  herein  forbidden. 

(e.)  Upon  the  confirmation  of  a  composition,  the  consideration  shall 
be  distributed  as  the  judge  shall  direct,  and  the  case  dismissed.  When- 
ever a  composition  is  not  confirmed,  the  estate  shall  be  administered  in 
bankruptcy  as  herein  provided. 

Application. 

In  the  case  cited,  the  circuit  and  district  courts  decided  that  the  pro- 
vision for  compositions  in  the  Laws  of  1867  is  constitutional,  and  dis- 
cussed the  requirements  of  the  resolution  and  other  proceedings  In  such 
cases.  In  re  Eeiman  et  al.,  7  Ben.  455;  12  Blatchf.  562;  20  Fed.  Oas.  490, 
500. 

Composition  proceedings  must  be  had  in  the  district  court  where  the 
bankruptcy  proceedings  are  pending.  In  re  Wronknow,  15  Blatchf.  38; 
18  N.  B.  R.  81;  30  Fed.  Oas.  718. 

After  the  adjudication  of  a  firm,  one  member  may  submit  a  proposition 
for  a  composition,  notwithstanding  the  firm  had  made  an  assignment  for 
the  benefit  of  creditors  under  a  state  law  prior  to  the  adjudication.  Pool 
V.  McDonald  et  al.,  15  N.  B.  E.  560;  19  Fed.  Cas.  987. 

An  order  refusing  a  discharge  in  bankruptcy  is  not  a  bar  to  composition 
proceedings.    In  re  Joseph,  24  Fed.  Rep.  137. 


116  The  Bankeuptcy  Law. 

The  mere  fact  that  the  bankrupts  have  been  refused  a  discharge  in 
bankruptcy  on  a  specification  of  objection  is  not  an  absolute  bar  to  a 
composition  under  the  Act  of  1867.  A  discharge  releases  a  bankrupt 
from  his  debts  whether  there  are  or  are  not  assets  for  distribution.  Under 
a  composition,  a  sum  of  money  is  paid  in  satisfaction  of  the  debt.  In  re 
Odell,  16  N.  B.  R.  501;  18  Fed.  Gas.  575. 

A  petition  for  composition  should  set  forth  its  nature  and  terms,  and  the 
belief  of  the  petitioner  that  it  will  be  accepted  by  the  required  number. 
So  held  under  the  Act  of  1867.    In  re  Holmes,  8  Ben.  74;  12  Fed.  Gas.  393. 

A  debtor,  injured  creditors,  or  the  assignee  in  bankruptcy,  can  recover 
money  paid  to  secure  signatures  to  a  composition,  and  it  is  no  defense  to 
such  an  action  that  the  composition  deed  was  invalid.  Bean  v.  Brook- 
mire,  2  Dill.  108;  2  Fed.  Gas.  1132. 

United  States  Act  of  1874  and  British  Act  of  1868  concerning  com- 
positions compared;  extracts  quoted  in  parallel  columns.  In  an  elaborate 
and  carefully  prepared  opinion.  Judge  Treat  discusses  the  law  and  pro- 
cedure in  composition,  the  respective  rights  of  creditors  and  of  the  bank- 
rupt, and  analogies  of  the  United  States  statute  with  the  British  act  In 
re  Scott,  15  N.  B.  R.  73;  21  Fed.  Oas.  805  (1876). 

Hearing. 

Where  a  composition  is  pending,  the  bankrupt  can  be  compelled  to 
appear  before  the  register  and  produce  his  books  for  examination  on  the 
question  whether  the  composition  was  for  the  interest  of  all  concerned. 
In  re  Ash,  17  N.  B.  R.  19;  2  Fed.  Gas.  6. 

In  a  proceeding  for  a  composition,  the  books  of  the  bankrupt  must  be 
produced  if  desired  and  time  given  for  an  examination  before  the  vote  is 
taken.  At  such  meeting  the  register,  or  other  presiding  officer,  has  power 
to  regulate  the  proceedings  and  decide  questions  subject  to  review  by  the 
court.  The  examination  of  the  debtor  should  be  conducted  like  that  of  a 
witness  in  a  court,  and  the  proceedings  should  be  recorded.  In  re  Holmes, 
8  Ben.  74;  12  Fed.  Gas.  393. 

Where  the  object  of  a  meeting  of  creditors  to  consider  a  proposed  com- 
position failed  by  reason  of  mistakes  on  the  part  of  attorneys,  it  was  held 
that  the  court  might  order  a  second  meeting.  In  re  McDowell,  6  Biss. 
193;  16  Fed.  Gas.  69. 

It  is  not  competent  for  a  resolution  of  composition  to  provide  that  upon 
the  delivery  of  the  notes  agreed  to  be  given  to  the  creditors,  all  the  prop- 
erty in  the  hands  of  the  assignee  shall  be  delivered  to  the  bankrupt  and 
the  assignee  discharged.  In  re  Hyman  et  al.,  8  N.  B.  R.  ;  12  Fed.  Ca,s. 
1135. 

At  a  meeting  of  creditors  to  vote  upon  a  composition,  thee  bankrupt  was 
absent.  After  a  recess,  the  bankrupt  not  appearing  for  examination,  a. 
resolution  accepting  a  composition  was  passed.  Creditors  who  had  op- 
posed an  adjournment  to  permit  the  attendance  of  the  bankrupt,  objected 
to  the  confirmation  on  the  ground  of  his  absence,  and  the  fact  that  he 
had  not  been  examined.    The  court  held  that  the  objections  were  too  late 


Bankrupts.  117 

after  the  adoption  of  the  resolution.  In  it'  Little,  19  N,  B.  R.  234;  15  Fed. 
Oas.  600. 

At  .a  meeting  for  final  action  on  a  proposed  composition,  the  report  of 
the  register  will  be  assumed  to  be  a  full  and  true  record  of  all  the  pro- 
ceedings had  before  him.    In  re  Spencer,  18  N.  B.  R.  199;  22  Fed.  Cas.  914. 

It  was  held  that  a  composition  by  which  a  previous  assignment  under 
a  state  law  was  ratified  might  be  varied  at  a  subsequent  meeting  of 
creditors  by  providing  for  the  distribution  of  the  assets  In  bankruptcy, 
no  creditors  being  prejudiced  thereby.  In  re  Dumahaut  et  al.,  15  Blatchf. 
20;  7  Fed.  Cas.  1177. 

When  a  bankrupt  asks  for  a  meeting  of  creditors  for  the  purpose  of 
proposing  a  composition,  tie  will  be  held  primarily  liable  for  the  register's 
costs  under  the  Act  of  1SG7.    In  re  Griffin,  8  Ben.  328;  11  Fed.  Cas.  5. 

Who  May  Participate  in  Proceedings. 

In  determining  whether  the  required  number  of  creditors  had  joined 
in  a  composition,  those  who  are  fully  secured  need  not  be  taken  into 
account.    In  re  Van  Auken  et  al.,  14  N.  B.  R.  425;  28  Fed.  Oas.  946. 

Attaching  creditors  have  no  right  to  vote  in  composition  proceedings, 
and  are  affected  by  the  composition.  In  re  Shields,  4  Dill.  588;  15  N.  B. 
R.  532  (1877);  21  Fed.  Oas.  1308. 

The  Amendatory  Bankrupt  Act  of  1874  contemplated  that  secured 
creditors  should  not  vote  at  a  composition.  A  creditor  who  had  attached, 
therefore,  could  not  vote  until  he  should  release  the  attachment.  In  re 
Scott,  15  N.  B.  R.  73;  21  Fed.  Cas.  805  (1876). 

In  composition  proceedings,  where  there  are  joint  and  separate  debts, 
the  creditors  may  direct  a  general  composition  if  there  is  no  objection, 
but  if  any  creditor  objects  there  must  be  a  vote  by  the  separate  classes 
of  creditors.    In  re  Spades  et  al.,  6  Biss.  448;  22  Fed.  Cas.  848. 

Creditors  who  have  proved  their  debts  under  a  void  voluntary  assign- 
ment may  nevertheless  vote  upon  a  resolution  for  a  composition  in 
bankruptcy  proceedings.    In  re  Troth,  1  Fed.  Rep.  405. 

Objections  to  the  vote  of  'a  creditor  upon  a  proposed  composition  on 
the  ground  that  his  claim  is  fictitious  cannot  be  made  for  the  first  time 
on  the  motion  for  confirmation.  They  should  be  made  before  the  vote 
is  taken,  or  if  the  facts  are  discovered  afterward,  then  as  soon  as  pos- 
sible.   In  re  Block  et  al.,  18  N.  B.  R.  328;  3  Fed.  Oas.  715. 

At  a  meeting  of  creditors  of  a  firm  to  act  on  a  proposed  compromise, 
Individual  creditors  have  no  right  to  vote.  In  re  South  Boston  Iron  Co., 
4  Cliff.  343;  22  Fed.  Cas.  812. 

A  creditor  who  considers  himself  secured,  though  he  is  not,  is  not 
entitled  to  consideration  in  determining  whether  the  required  number 
have  assented  to  the  composition.  In  re  Snelling,  19  N.  B.  R.  120;  22 
Fed.  Oas.  719. 

The  word  "  creditors  "  in  the  provisions  of  the  Act  of  1867,  relating  to 
compositions,  was  held  to  mean  all  persons  having  debts  provable  in 
bankruptcy.    Ex  parte  Trafton,  2  Low.  505;  24  Fed.  Cas.  122. 


118  The  Bankeuptot  Law. 

Workmen  having  privileged  debts  were  held  entitled  to  vote  for  a  com- 
position only  on  the  excess  of  their  debts  over  $50,  made  privileged  by 
law.    In  re  O'Neil,  14  N.  B.  R.  210;  18  Fed.  Cas.  715  (1876). 

Where  a  creditor  had  appeared  at  a  meeting  to  consider  an  offer  of 
composition,  and  subsequently  withdrawn,  it  was  held  that  he  could  be 
counted  as  voting  against  the  composition.  In  re  Richmond  et  al.,  18 
N.  B.  R.  362;  20  Fed.  Cas.  736. 

Creditors  of  a  bankrupt  gave  a  power  of  attorney  to  sign  a  composi- 
tion with  directions  that  it  was  not  to  be  accepted  if  made  for  less  then 
20  per  cent.,  one-half  payable  in  six  months  and  one-half  in  twelve 
months  from  February  16th.  The  attorney  signed  a  composition  for  20 
per  cent,  payable  in  six  and  twelve  months,  from  March  16th. 

The  difference  in  time  was  held  to  be  fatal  to  the  proceedings.  In  re 
Alexander,  9  Ben.  99;  1  Fed.  Cas.  347. 

Creditors  who  have  not  proved  their  debts,  but  were  allowed  to 
intervene  in  the  proceedings  prior  to  adjudication,  cannot  take  paii:  in 
subsequent  proceedings  for  a  composition.  In  re  Bryce  et  al.,  19  N.  B.  R. 
287;  4  Fed.  Oas.  520 

The  question  being  whether  one-half  of  the  creditors  had  assented  to 
a  composition,  damages  for  a  tort  not  assessed  were  excluded.  In  re 
Bailey  et  al.,  2  Woods,  222;  2  Fed.   Oas.  362. 

A  creditor  can  vote  on  claims  which  he  bought  up  for  the  express 
purpose  of  opposing  the  composition.  Ex  parte  Jewett,  2.  Low.  393;  13 
Fed.  Cas.  580. 

Only  creditors  who  have  proved  their  claims  are  qualified  to  take 
part  in  a  meeting  to  receive  a  proposed  composition.  Oral  or  written 
testimony  may  be  received  at  such  a  meeting  when  it  is  pertinent  to 
the  question  whether  the  composition  is  for  the  best  interest  of  creditors. 
In  re  Keller  et  al.,  18  N.  B.  R.  331;  14  Fed.  Cas.  233. 

Held,  under  the  Act  of  1867,  that  only  creditors  who  had  proved  their 
debts  could  vote  upon  accepting  a  proposition  to  have  a  composition.  In 
re  Matthers,  17  N.  B.  R.  225;  16  Fed.  Cas.  1093. 

Objections  to  Confirmation. 

The  court  will  interfere  with  a  proposed  composition  on  the  applica- 
tion of  a  single  creditor  who  charges  fraud  or  deceit,  to  examine  the 
charges.    In  re  Keiler,  18  N.  B.  R.  36;  14  Fed.  Cas.  216. 

The  fact  that  the  debtor  retains  possession  of  his  assets  is  no  ground 
for  refusing  to  confirm  a  composition  which  was  made  before  adjudica- 
tion.   In  re  Van  Auken  et  al.,  14  N.  B.  R.  425;  28  Fed.  Cas.  946. 

The  necessary  number  of  creditors  having  signed,  and  it  appearing 
that  the  interests  of  all  creditors  would  be  promoted  by  the  terms  of  a 
composition,  it  must  be  confirmed,  notwithstanding  the  bankruptcy  was 
brought  about  fraudulently  and  collusively.  In  re  Allen,  17  N.  B.  R.  157; 
1  Fed.  Cas.  439. 

After  the  refusal  of  a  discharge,  a  majority  of  the  creditors  voted  to 
accept  a  composition  for  one-half  of  1  per   cent.       On   the   objection 


Bankrupts.  119 

of  two  creditors  who  had  opposed  the  discharge,  the  court  refused  to 
confirm  the  composition.    In  re  Hannahs,  8  Ben.  553;  11  Fed.  C'as.  446. 

The  court  will  confirm  a  composition  where  It  appears  that  the  dis- 
senting creditor  would  not  receive  any  more  than  the  proposed  amount 
if  the  administration  should  proceed,  no  collusion  having  been  established. 
In  re  Keller,  18  N.  B.  R.  36;  14  Fed.  Gas.  216. 

The  court  confirmed  a  resolution  of  composition  which  provided  that 
the  payment  should  be  secured  by  a  satisfactory  bond  running  to.  three 
persons  named  in  the  resolution  as  a  committee  of  creditors.  In  re  Lewis, 
14  N.  B.  K.  144;  15  Fed.  Gas.  456. 

A  court  will  not  confirm  a  composition,  although  accepted  by  the  re- 
quired number  of  creditors,  when  it  clearly  appears  that  the  bankrupt 
has  given  preference  to  certain  creditors  in  fraud  of  the  law  prior  to 
the  proceedings.    In  re  Jacobs,  18  N.  B.  R.  48;  13  Fed.  Gas.  271. 

The  required  number  of  creditors  accepted  and  confirmed  an  offer  of 
composition  which  provided  for  the  payment  of  the  debts  by  unsecured 
notes  to  be  delivered  within  ten  days,  and  that  immediately  upon  the 
recording  of  the  resolution  of  composition,  the  property  of  the  banli- 
rupt  should  be  restored  to  them  and  the  proceedings  discontinued.  The 
court  refused  to  confirm  the  composition.  In  re  Janeway,  8  Ben.  267; 
13  Fed.  Gas.  847. 

Where  the  bookkeeper  of  the  bankrupt,  without  the  knowledge  of  the 
latter,  paid  money  to  one  creditor,  who  thereupon  assented  to  a  com- 
position, and  offered  money  to  another,  who  refused,  the  court  refused 
to  confirm  the  composition,  notwithstanding  the  required  proportion  of 
creditors  had  signed  without  counting  the  one  who  had  received  money. 
In  re  Bennett  et  al.,  8  Ben.  561;  3  Fed.  Gas.  205. 

A  payment  by  the  banlsrupt  to  one  creditor  of  a  larger  sum  than 
was  paid  to  others,  for  the  purpose  of  inducing  him  to  accept  a  com- 
position, Is  unlawful,  and  so  is  a  promise  to  pay  money  to  a  creditor's 
agent  in  consideration  that  he  will  urge  the  acceptance  of  a  compromise. 
BuUene  v.  Blain,  6  Biss.  22;  4  Fed.  Gas.  646. 

A  discharge  does  not  release  a  bankrupt  as  to  debts  omitted  from  his 
schedule;  and  it  follows  that  an  omission  cannot  be  urged  to  an  opposi- 
tion to  the  confirmation  of  a  composition.  In  re  Greenebaum  et  al.,  1 
Ghi.  L.  J.  599;  10  Fed.  Gas.  1156. 

It  is  not  a  valid  objection  to  a  composition  that  some  of  the  signers 
acted  in  g.  representative  capacity.  In  re  Greenebaum  et  al.,  1  Chi.  L. 
J.  599;  10  Fed.  Gas.  1156. 

The  creditors  of  a  corporation  consented  to  a  composition  for  75 
per  cent.,  payable  in  installments  running  for  three  years,  and  pro- 
viding that  its  property  should  be  restored  to  it.  The  president,  who 
was  also  at  one  time  treasurer,  while  serving  in  the  latter  capacity 
had  used  the  funds  of  the  company  for  his  own  benefit,  and  the  trustees 
had  settled  with  him  without  criminal  prosecution.  The  court,  under 
the  circumstances  of  the  case,  and  in  view  of  the  character  and  conduct 
of  the  managing  officers  of  the  corporation,  refused  to  confirm  the  com- 
position.   In  re  McKnab  &  H.  M.  Go.,  18  N.  B.  B.  388;  16  Fed.  Gas.  313. 


130  The  Bankruptcy  Law. 

An  order  to  record  a  composition  will  not  be  refused  on  account  of 
delay  that  did  not  amount  to  laches  in  securing  the  required  number  of 
signatures.    In  re  Oavan,  19  N.  B.  R.  303;  5  Fed.  Oas.  318. 

The  bankrupt  procured  friends  to  pay  more  in  composition  than  his 
estate  could  pay  in  bankruptcy.  Judge  Lowell  held  that  such  a  com- 
position "  stands  well  before  the  court."  In  re  Snelling,  19  N.  B.  R.  120; 
22  Fed.  Gas.  719. 

A  composition  for  25  per  cent,  with  an  agreement  that  as  soon  as  the 
first  installment  of  5  per  cent,  should  be  paid,  the  bankrupt  should  re- 
sume possession  of  his  property,  when  It  appeared  that  before  his  bank- 
ruptcy he  had  misappropriated  funds  belonging  to  another,  was  not 
confirmed.    In  re  Bloch  et  al.,  18  N.  B.  B.  328;  3  Fed.  Oas.  715. 

The  fact  that  a  bankrupt  has  committed  acts  which  would  be  ground 
for  denying  a  discharge  will  not  prevent  the  court  from  confirming  a 
rfesolution  of  composition.    In  re  Troth,  19  N.  B.  R.  253;  24  Fed.  Oas.  214. 

The  fact  that  the  assets  of  the  debtor  by  the  terms  of  the  composi- 
tion are  allowed  to  remain  in  the  hands  of  the  debtor  does  not  neces- 
sarily show  that  tlie  settlement  is  not  for  the  best  interest  of  all  con- 
cerned.   In  re  Wilson,  18  N.  B.  R.  300;  30  Fed.  Oas.  98  (1878). 

The  circuit  court  for  the  eastern  district  of  Michigan,  reversing  the 
district  court,  held  that  where  a  resolution  of  composition  has  been 
passed  after  an  examination  of  the  debtor,  though  there  are  badges 
of  fraud,  the  district  court  should  not  refuse  to  confirm  without  a  hear- 
ing upon  notice  to  the  bankrupt  and  the  creditors  voting  with  the  ma- 
jority.   In  re  Weber  Furniture  Co.,  13  N.  B.  R.  559;  29  Fed.  Gas.  536. 

The  question  being  whether  a  composition  should  be  confirmed,  the 
court  held  that  it  should  consider  what  the  creditors  would  receive  in 
the  course  of  proceedings,  and  not  what  the  debtor  might  possibly  be  able 
to  pay  them.    In  re  Whipple,  2  Low.  404;  29  Fed.  Oas.  929. 

The  bankrupt  had  satisfied  some  of  his  debts  at  large  discounts,  and  his 
brother  had  purchased  others.  This  Tvas  held  to  be  no  reason  for  re- 
fusing to  confirnl  a  composition  which  had  been  approved  by  two-thirds 
of  the  creditors  holding  the  majority  of  the  claims  independent  of  those 
held  by  the  brother.    In  re  Walshe,  2  Woods,  225;  29  Fed.  Oas.  110. 

In  the  absence  of  a  flagrant  disparity,  the  confirmation  of  a  composition 
will  not  be  refused  merely  on  a  representation  that  the  estate  could  pay 
more.    In  re  Welles,  18  N.  B.  R.  525;  29  Fed.  Gas.  619. 

The  absence  of  one  of  the  debtors  at  a  creditors'  meeting,  he  having 
been  excused  by  a  majority,  is  not  of  itself  sufficient  cause  for  rejecting 
a  composition.  In  re  Wronknow,  15  Blatchf.  38;  18  N.  B.  R.  81;  30  Fed. 
Oas.  718. 

The  judgment  of  the  requisite  majority  in  composition  proceedings 
should  be  allowed  to  prevail  unless  obtained  without  sufiicient  considera- 
tion, or  by  unfairness  or  undue  influence.  In  re  Wronknow,  15  Blatchf. 
38;  18  N.  B.  B.  81;  30  Fed.  Oas.  718. 

On  the  final  hearing  to  confirm  a  composition,  the  court  of  bankruptcy 
referred  the  matter  back  to  the  register  to  report  the  facts,  and  the  circuit 


Bankeupts.  131 

court,  through  Justice  Bradley,  approved  of  the  action,  holding  that  the 
court  of  bankruptcy  need  not  regard  the  ordinary  rules  of  procedure  in 
the  exercise  of  its  equitable  jurisdiction.  In  re  Walshe,  2  Woods,  225;  29 
Fed.  Cas.  110. 

Judge  Lowell  held  under  the  Act  of  1867,  that  a  I'esolution  for  com- 
position providing  for  the  payment  of  debts  in  notes  was  faulty;  but  that 
the  payment  might  be  made  in  installments  represented  or  secured  by 
notes.    In  re  Langdon,  2  Low.  3S7;  14  Fed.  Cas.  1099. 

A  composition  that  provided  for  a  payment  to  be  secured  by  a  satis- 
factory bond  to  be  given  to  three  persons  as  a  committee  of  creditors, 
was  confirmed,  with  the  understanding  that  such  committee  should  de- 
cide whether  the  bond  was  satisfactory.  In  re  Louis  et  al.,  7  Ben.  481; 
15  Fed.  cas.  942. 

The  law  devolves  upon  'creditors  the  duty  of  accepting  or  rejecting 
propositions  for  a  composition;  and  if  they  acted  in  the  full  knowledge 
of  the  condition  of  the  bankrupt's  affairs,  and  of  their  rights,  the  court 
will  not  withhold  confirmation.  In  re  Greenebaum  et  al.,  1  Chi.  L.  J. 
599;  10  Fed.  Cas.  1156. 

Effect  of  Confirmation. 

The  acceptance  and  recording  of  a  composition  do  not  dissolve  existing 
attachments;  they  are  only  dissolved  by  an  assignment  under  the  Law  of 
1867.    In  re  Clapp  et  al.,  2  Low.  468;  5  Fed.  Cas.  819: 

The  confirmation  of  a  composition,  and  the  performance  of  the  con- 
ditions by  the  bankrupt  suspends  the  functions  of  the  assignee,  and  the 
delivery  of  any  property  by  him  to  the  bankrupt  in  accordance  with  the 
terms  of  the  composition  dlschai-ges  him  from  any  further  liability  there- 
for.   In  re  August,  19  N.  B.  K.  161;  2  Fed.  Cas.  208. 

The  court  dissolved  an  injunction  to  prevent  a  creditor  from  levying  an 
execution  on  the  personal  property  of  a  bankrupt  after  a  composition  had 
been  confirmed.    In  re  Tytle  et  al.,  14  N.  B.  R.  457;  15  Fed.  Gas.  1195'. 

After  the  confirmation  of  a  composition,  a  secured  creditor  is  confined 
to  the  security,  and  has  no  claim  against  the  bankrupt  for  a  deficiency. 
Ibid. 

It  is  not  the  resolution  of  composition,  but  the  payment  of  the  amount 
agreed  upon  that  discharges  the  bankrupt.  In  re  Hurst,  13  N.  B.  R.  455; 
12  Fed.  Cas.  1020. 

When  a  composition  has  been  made,  accepted,  and  approved  by  the 
court,  and  its  terms  complied  with  by  the  debtor,  he  is  discharged  from 
the  claims  of  all  creditors,  whose  names,  addresses,  and  the  amounts  due 
them  have  been  given  in  his  statement,  and  no  other  discharge  is  neces- 
sary or  proper.    In  re  Beckett,  2  Woods,  173;  3  Fed.  Cas.  27. 

Under  the  amendment  of  1874  authorizing  the  court  to  enforce  the  pro- 
visions of  a  composition  in  a  summary  manner,  it  can  enforce  only  the 
executory  provisions  of  the  composition,  and  the  taking  by  a  creditor  of 
the  money  and  notes  provided  for  by  a  composition  is  not  an  executory 
provision  which  can  be  so  enforced.  In  re  Hinsdale,  7  Ben.  9;  12  Fed. 
Gas.  207. 


133  The  Bankeuptcy  Law. 

After  the  time  for  paying  a  composition  is  passed,  tlie  court  cannot 
enjoin  a  creditor  who  refuses  to  accept  the  money  from  suing  the  debtor 
for  his  claim.  The  latter  may  plead  the  composition  in  defense.  Where 
the  composition  is  still  pending,  that  is,  until  all  notes  given  for  it  fall 
due,  the  rule  is  otherwise,  and  the  court  may  enjoin  a  creditor  from  suing 
the  debtor  on  an  unsecured  debt  set  forth  in  his  schedules.    Ibid. 

Under  sections  12  and  13  of  the  amendatory  Act  of  1874,  a  judgment 
of  the  district  court  declaring  a  composition  final  was  held  not  to  be 
reviewable.    In  re  Lloyd,  15  Fed.  Gas.  717. 

A  discharge  by  proceedings  in  composition  was  held  to  be  within  the 
meaning  of  section  5116,  E,  S.    Buiz  v.  Eickerman,  5  Fed.  Rep.  790. 

A  debtor,  having  made  a  composition  with  certain  creditors,  paid  an- 
other creditor,  who  had  refused  to  unite  in  the  composition,  out  of  a  fund 
which  was  not  included  in  the  schedules.  It  was  held  'that  the  creditors 
signing  the  composition  could  not  recover  from  the  creditor  who  received 
such  payment.  National  Park  Bank  v.  People's  Bank  et  al.,  25  Int.  Rev. 
Bee.  169;  1  Fed.  Oas.  1229. 

The  bankrupt  had  promised  to  pay  a  certain  percentage  of  his  debts  in 
composition  proceedings,  and  his  wife  had  agreed  in  writing  to  unite  in  a 
mortgage  on  the  homestead  to  secure  the  installments.  Before  the  con- 
firmation, the  bankrupt  absconded.  A  motion  by  the  assignee  to  compel 
the  bankrupt  and  his  wife  to  execute  the  notes  and  mortgage  in  accord- 
ance with  the  composition  was  denied,  and  the  court  held  that  the  only 
relief,  if  any,  could  be  found  in  a  plenary  suit.  In  re  Remsen,  9  Ben.  260; 
20  Fed.  Oas.  531. 

An  order  of  composition  cannot  deprive  a  nonconsenting  creditor  of  a 
vested  right.    In  re  Stowell,  2i  Fed.  Rep.  468. 

When  a  creditor  neglects  to  prove  his  claim  in  composition  proceedings 
until  after  the  final  distribution,  he  is  not  entitled  to  relief.  In  re  Starr, 
56  Fed.  Rep.  142. 

Judge  Choate,  of  the  district  court  for  the  southern  district  of  Xew 
York,  held  that  a  composition  in  bankruptcy  discharged  fiduciary  debts. 
In  re  Rodgers  et  al.,  18  N.  B.  R.  252;  20  Fed.  Gas.  1085. 

Proceedings  in  composition  may  bind  creditors  notwithstanding  they 
are  irregular  as  to  other  parties.  In  re  Rodger  et  al.,  18  N.  B.  R.  381;  20 
Fed.  Gas.  1088. 

Judge  Emmons  reached  the  conclusion  from  an  examination  of  English 
and  American  cases  that  in  the  absence  of  fraud,  accident  or  mistake,  the 
action  of  the  majority  of  the  creditors  upon  a  composition  is  conclusive 
as  to  the  amount.  In  re  Weber  Furniture  Co.,  13  N.  B.  B.  559;  29  Fed. 
Gas.  536. 

A  resolution  of  composition  provided  that  the  debtor  having  executed 
certain  notes,  his  property  should  remain  in  his  control;  that  for  better 
security  a  receiver  be  appointed,  who  should  not,  however,  take  posses- 
sion of  the  property  until  a  default  should  be  made  by  the  debtor  in  pay- 
ment of  any  of  the  notes.  It  was  held  that  the  court  was  not  bound  by 
the  provisions  as  to  receiver,  and  might  appoint  another,  or,  in  its  dis- 


Bankbupts.  133 

cretion,  proceed  to  administer  tlie  estate  in  bankruptcy.  In  re  Wilson,  16 
Blatchf.  112;  30  Fed.  Gas.  93  (1879). 

Willie  a  composition  was  pending  to  pay  creditors  70  per  cent.,  one 
of  them  demanded  and  received  payment  In  full  before  signing.  He  was 
required  to  return  the  amount  to  the  assignee,  and  having  done  so  was 
allowed  to  prove  his  debt  and  receive  dividends.  Brookmire  et  al.  v. 
Bean.  3  Dill.  136;  4  Fed.  Gas.  243. 

When  a  composition  had  been  arranged  and  conflrroed  but  not  carried 
out,  the  creditor  cannot  thereupon  proceed  against  the  bankrupt  for  the 
collection  of  his  debt  for  the  reason  that  the  bankruptcy  proceedings  are 
still  pending,  and  he  Is  confined  to  them.  In  re  Bayly,  19  N..  B.  R.  73;  2 
Fed.  Gas.  1085. 

I  Where  a  composition  contained  an  agreement  that  It  should  not  be 
binding  on  anyone  unless  signed  by  all  the  creditors,  the  provision  was 
held  to  apply  to  secured  as  well  as  to  unsecured  creditors.  Rinsing's 
Assignee  v.  Bartholomew  et  al.,  1  Dill.  156;  14  Fed.  Gas.  642. 

Certain  creditors,  who  had  filed  a  petition  for  the  review  of  an  order 
confirming  a  composition,  refused  to  receive  payment  of  notes  given  in 
accordance  with  its  terms.  The  money  was  ordered  to  be  paid  into  court, 
and,  the  bankrupt  having  refused  to  do  so,  the  court  made  a  summary 
order  upon  him  to  pay  the  notes  on  the  demand  of  the  creditors.  In  re 
Reynolds,  16  N.  B.  R.  176;  20  Fed.  Gas.  618. 

Where  a  bankrupt  falls  to  perform  or  attempt  a  performance  In  ac- 
cordance with  an  arrangement  in  composition,  a  creditor  may  bring  an 
action  to  recover  his  debt.    Ransom  v.  Geer,  12  Fed.  Rep.  607. 

Held,  that  section  17  of  the  amendatory  Act  of  1874  did  not  repeal  sec- 
tion 5117,  R.  S.,  and  that  a  composition  did  not  release  the  bankrupt  from 
a  fiduciary  debt.  Wilmot  v.  Mudge,  108  U.  S.  217;  Bayley  v.  University, 
106  id.  11. 

A  creditor  was  not  bound  by  composition  proceedings  when  his  name 
did  not  appear  in  the  schedule  to  the  bankrupt  or  otherwise.  In  re 
Blackmore,  11  Fed.  Rep.  412. 

A  creditor  who  has  exhausted  his  security,  and  has  a  deficiency  judg- 
ment, may  issue  an  execution  upon  the  same  against  the  property  of  the 
bankrupt,  notwithstanding  composition  proceedings.  Cavanna  v.  Bassett, 
3  Fed.  Rep.  215. 

An  action  in  a  state  court  by  a  creditor  seeking  to  recover  his  whole 
debt  from  a  bankrupt  who  has  effected  a  composition  will  not  be  re- 
strained by  the  court  of  bankruptcy.    In  re  Negley,  20  Fed.  Rep.  499. 

A  settlement  with  creditors  by  composition  takes  the  place  of  bank- 
ruptcy proceedings,  and  a  discharge  thus  obtained  is  as  complete  as  a 
discharge  in  bankruptcy.    Mayer  v.  Gourden,  26  Fed.  Rep.  742. 

The  performance  of  the  conditions  of  a  lawful  composition  under  sec- 
tion 17  of  the  amendatory  Act  of  1874  was  held  to  be  tantamount  to  a 
discharge.    Boynton  v.  Ball,  121  U.  S.  457. 

A  creditor  who  had  advanced  money  to  the  bankrupt  with  an  under- 
standing that  the  latter  should  not  be  pressed  for  payment  was  held 


134  The  Bankruptcy  Law. 

entitled  to  share  in  the  dividends  under  a  composition,  no  misrepresenta- 
tion having  been  made  to  the  bankrupt's  creditors.  In  re  Lane  et  al.,  2 
Low.  333;  14  Fed.  Gas.  1070. 

A  bankrupt  is  by  his  discharge  released  from  liability  for  breach  of 
contract  with  a  creditor  who  assented  to  a  composition,  although  the 
creditor  was  ignorant  of  the  breach  at  the  time  of  giving  assent.  Fowle 
V.  Parke,  48  Fed.  Rep.  789. 

[See  notes  to  §  14.] 

Setting  Aside. 

§  13.  Compositions,  when  Set  Aside. —  (a.)  The  judge  may,  upon 
the  application  of  parties  in  interest  filed  at  any  time  within  six  months 
after  a  composition  has  been  confirmed,  set  the  same  aside  and  reinstate 
the  case  if  it  shall  be  made  to  appear  upon  a  trial  that  fraud  was  prac- 
ticed in  the  procuring  of  such  composition,  and  that  the  knowledge 
thereof  has  come  to  the  petitioners  since  the  confirmation  of  such 
composition. 

A  composition  will  not  be  annulled  by  an  innocent  mistake  of  the 
debtor  as  to  the  amount  due  a  creditor;  and  the  correct  amount  may  be 
proved.    Ex  parte  Trafton,  2  Low.  505;  24  Fed.  Cas.  122. 

Two  years  after  a  composition  had  been  made  and  the  dividends  dis- 
tributed, creditors  who  had  received  their  dividends  filed  a  petition  to  set 
aside  the  composition  on  the  ground  that  some  of  the  votes  in  support  of 
it  had  been  purchased.  In  the  meantime,  the  bankrupts  had  engaged  in 
a  new  business  and  contracted  new  debts  to  a  large  amount.  Before  the 
composition,  the  petitioning  creditors  had  sufficient  knowledge  to  put  them 
on  their  inquiry.  Judge  Blatchford  held  that  it  was  too  late  to  raise  the 
question  as  to  the  means  by  which  the  composition  was  accepted,  and 
rejected  the  application  to  set  It  aside.  In  re  Herrman  et  al.,  9  Ben.  436; 
12  Fed.  Cas.  19. 

Where  the  vote  of  an  unqualified  creditor  did  not  affect  the  result,  a 
composition  will  not  be  set  aside  by  reason  of  such  vote.  In  re  Walshe, 
2  Woods,  225;  29  Fed.  Oas.  110. 

If  a  creditor  is  induced  to  vote  for,  or  to  sign  a  composition  by  any 
means  different  from  or  beyond  the  composition,  whether  known  to  the 
debtor  or  not,  his  vote  so  influenced  operates  as  a  fraud  on  the  other 
creditors,  and  makes  the  composition  voidable  by  any  of  them.  A  ma- 
jority arrived  at  by  bribery,  though  the  bankrupt  be  no  party  to  it,  is 
no  fair  majority;  and  it  seems  that  if  a  vote  is  influenced  by  the  expecta- 
tion of  advantage,  though  without  positive  promise,  it  cannot  be  con- 
sidered an  honest  vote.  In  re  Sawyer,  14  N.  B.  R.  241;  21  Fed.  Oas.  559 
(1876). 

The  fact  that  full  security  is  not  taken  does  not  make  a  composition 
uncertain.    In  re  Wilson,  18  N.  B.  R.  300;  30  Fed.  Cas.  98  (1878). 


Bankeupts.  135 

An  order  vacating  a  compromise,  obtained  without  notice,  may  be  set 
aside  by  the  bankruptcy  court  without  notice.  In  re  Dunn,  53  Fed.  Rep. 
341. 

Irregularities  in  a  proceeding  respecting  a  composition  which  are  not 
tainted  with  fraud  are  not  fatal  to  its  validity.  In  re  Henry  et  al.,  9  Ben. 
449;  11  Fed.  Cas.  1148. 

It  was  held  to  be  no  ground  to  set  aside  a  compromise  that  each  of  the 
bankrupts  received  a  sum  out  of  the  partnership  fund  when  that  fact 
was  known  to  the  creditors  before  voting  in  favor  of  accepting  the  prop- 
osition.   In  re  South  Boston  Iron  Co.,  4  Cliff.  343;  22  Fed.  Cas.  812. 

Acts  regularly  done  in  accordance  with  a  composition  which  is  sub- 
sequently set  aside  are  valid.  Ex  parte  Hamlin,  2  Low.  571;  11  Fed. 
Cas.  367. 

A  sale  which  might  have  been  avoided  by  the  assignee  in  bankruptcy 
will  not  be  disturbed  in  a  proceeding  to  set  aside  a  composition  after  it 
has  been  fully  executed.    In  re  Shaw,  9  Fed.  Rep.  495. 

A  composition  is  not  avoided  by  a  delay  in  the  payment  which  was 
caused  by  legal  obstructions.  In  re  Kohlsaat,  18  N.  B.  R.  570;  14  Fed. 
Oas.  833. 

A  composition  which  is  fraudulent  as  to  some  creditors  can  only  be  at- 
tacked by  those  who  are  injured.  In  re  Hamlin  et  al.,  8  Blss.  122;  11 
Fed.  Cas.  369. 

A  petition  having  been  filed  to  set  aside  a  composition  on  the  ground 
that  certain  creditors  had  been  paid  more  than  others,  the  court  ordered 
the  clerk  to  call  a  meeting  of  creditors  for  the  purpose  of  taking  testimony, 
the  petitioners  to  have  the  affirmative,  and  the  clerk  to  report  the  testi- 
mony to  the  court.    In  re  Diggles  et  al.,  8  Ben.  36;  7  Fed.  Cas.  693. 

A  composition  was  procured  in  consideration  of  a  premium  to  be  paid 
by  the  bankrupt  to  one  of  his  creditors,  the  latter  buying  claims  against 
the  estate  and  voting  them  in  the  composition.  The  composition  being 
confirmed,  the  creditor  aforesaid  received  a  transfer  of  the  bankrupt's 
property  according  to  agreement.  It  was  held  that  the  composition  was 
fraudulent,  and  that  the  assignee  of  the  bankrupt  could  recover  the  prop- 
erty thus  transferred.    Fairbanks  v.  Bank,  38  Fed.  Rep.  630. 

Discharges. 

§  14.  Discharges,  when  Granted. —  (a.)  Any  person  may,  after  the 
expiration  of  one  month  and  within  the  next  twelve  months  subsequent 
to  being  adjudged  a  bankrupt,  file  an  application  for  a  discharge  in  the 
court  of  bankruptcy  in  which  the  proceedings  are  pending;  if  it  shall  be 
made  to  appear  to  the  judge  that  the  bankrupt  was  unavoidably  pre- 
vented from  filing  it  within  such  time,  it  may  be  filed  within  but  not 
after  the  expiration  of  the  next  six  months. 

(b.)  The  judge  shall  hear  the  application  for  a  discharge,  and  such 
proofs  and  pleas  as  may  be  made  in  opposition  thereto  by  parties  in 


126  The  Bankruptcy  Law. 

interest,  at  such  time  as  will  give  parties  in  interest  a  reasonable  oppor- 
tunity to  be  fully  heard,  and  investigate  the  merits  of  the  application 
and  discharge  the  applicant  unless  he  has 

(1.)  Committed  an  offense  punishable  by  imprisonment  as  herein 
provided;  or 

(2.)  With  fraudulent  intent  to  conceal  his  true  financial  condition 
and  in  contemplation  of  bankruptcy,  destroyed,  concealed,  or  failed 
to  keep  books  of  account  or  records  from  which  his  true  condition 
might  be  ascertained. 

(e.)  The  confirmation  of  a  composition  shall  discharge  the  bank- 
rupt from  his  debts,  other  than  those  agreed  to  be  paid  by  the  terms 
of  the  composition  and  those  not  affected  by  a  discharge. 

Time  of  Application. 

It  was  held  sufficient  under  the  Act  of  1867  if  a  bankrupt's  application 
for  a  discharge  was  made  before  the  discharge  of  the  assignee.  In  re 
Smith,  9  Fed.  Rep.  952.  Or  if  made  before  the  final  disposition  of  the 
goods.     In  re  Young,  id.  146. 

It  was  held  under  the  Act  of  1867  that  any  creditor  having  a  provable 
debt  could  apply  to  the  court  after  a  year  and  require  the  bankrupts  to 
have  the  question  of  discharge  determined.  In  re  Fowler,  2  Low.  122; 
9  Fed.  Gas.  615. 

The  time  within  which  a  petition  for  a  discharge  may  be  filed  Is  con- 
sidered in  the  case  cited.    In  re  Watson  et  al.,  29  Fed.  Gas.  423. 

It  was  held  under  the  Act  of  1867  that  the  court  had  no  power  to  grant 
a  discharge  when  no  assets  have  come  into  the  hands  of  the  assignee,  and 
the  bankrupt  had  allowed  more  than  one  year  to  elapse  after  the  order 
of  adjudication  before  making  his  application.  In  re  Schenck,  5  N.  B.  R. 
9S;  21  Fed.  Gas.  660  (1872). 

In  this  case  the  bankrupt  having  failed  to  show  any  reasonable  cause 
for  delay  in  asking  for  his  discharge,  the  court  ordered  that  the  creditors 
have  leave  to  prosecute  suits  as  if  he  had  never  been  adjudged  a  bank- 
rupt.   In  re  Kelly,  3  Fed.  Kep.  219. 

The  fact  that  a  prior  petition  for  discharge  had  been  made  out  of  season 
did  not  affect  the  jurisdiction  of  the  court  over  a  subsequent  petition.  In 
re  White,  18  N,  B.  R.  107;  29  Fed.  Gas.  966. 

Where  the  bankrupt  had  delayed  unreasonably  in  applying  for  a  dis- 
charge, the  court  ordered  that  his  creditors  have  leave  to  prosecute  suits 
against  him  in  like  manner  as  if  bankruptcy  proceedings  had  not  been 
insituted.    In  re  Whiting,  29  Fed.  Gas.  1065. 

Under  the  Act  of  1867  the  district  court  could  allow  a  bankrupt  to  with- 
draw his  petition  for  discharge  and  subsequently  file  another.  In  re 
Svenson,  9  Biss.  69;  23  Fed.  Gas.  480. 

Justice  Nelson,  reversing  Judge  Blatchford,  decided  that  under  section 
29  of  the  Act  of  1867,  a  bankrupt  must  apply  for  a  discharge  within  one 


Bankrupts.  137 

year  only  in  cases  where,  by  reason  of  no  debts  having  been  proved,  and 
no  assets  having  come  into  the  hands  of  the  assignee,  he  can  apply  for  a 
discharge  within  less  than  six  months.  In  re  Greenfield,  6  Blatchf.  287; 
10  Fed.  Cas.  1165. 

A  discharge  was  refused  because  the  debtor  had  not  applied  for  over  one 
year  after  filing  a  voluntary  petition,  no  assets  having  come  into  the 
hands  of  the  assignee.  Subsequently,  he  filed  a  new  petition,  and  was 
adjudged  a  bankrupt;  and  the  court  decided  that  the  former  refusal  to 
grant  the  discharge  by  reason  of  delay  did  not  bar  the  new  proceedings. 
In  re  Farrell,  5  N.  B.  R.  125;  8  Fed.  Cas.  1078. 

t'nder  the  Act  of  1867,  where  debts  are  proved  and  assets  come  into  the 
hands  of  the  assignee,  the  bankrupt  need  not  apply  for  his  discharge 
within  one  year  from  the  adjudication.  In  re  Holmes,  14'  N.  B.  R.  209; 
12  Fed.  Cas.  402. 

Judge  Dillon  held  that  a  discharge  might  be  granted  under  section  29 
of  the  Act  of  1867  though  it  was  not  applied  for  within  a  year,  where 
there  are  no  assets,  and  the  delay  was  satisfactorily  accounted  for.  In 
re  Donaldson,  2  Dill.  546;  7  Fed.  Cas.  882. 

The  court  construed  section  29  of  the  Act  of  1867  as  giving  it  discretion 
to  grant  or  withhold  a  discharge,  according  to  the  circumstances  of  each 
case,  when  the  application  is  made  after  the  expiration  of  one  year.  In 
re  Canady,  2  Biss.  75;  5  Fed.  Cas.  2. 

An  adjudication  was  had  in  1868,  and  no  assets  came  into  the  hands  of 
the  assignee.  In  1877  the  bankrupt  filed  a  petition  for  his  discharge.  The 
court  refused  the  discharge  on  the  ground  of  laches.  In  re  Potteiger,  19 
Fed.  Cas.  1132. 

The  court  refused  to  grant  a  discharge  to  the  bankrupt  who  had  no 
assets  except  such  as  were  exempt,  and  who  failed  to  apply  within  a 
year  after  adjudication,  saying:  "  The  privilege  of  a  discharge  is  given 
by  section  33  only  to  a  person  who  has  in  all  things  conformed  to  his 
duty  under  the  Act,  and  who  has  conformed  to  all  the  requirements  of 
the  Act.  One  of  these  requirements  Is  that  the  application  in  this  case 
be  made  within  one  year  from  the  adjudication.  The  discharge  is  a 
favor  granted  on  a  compliance  with  the  condition  prescribed,  and  not  a 
right."    In  re  Martin,  2  N.  B.  R.  548;  16  Fed.  Cas.  881. 

It  was  held  under  the  Act  of  1867  that  the  district  court  had  no  power 
under  any  circumstances  to  grant  a  discharge  unless  it  was  applied  for 
within  one  year  after  adjudication.  In  re  Sloan,  13  Blatchf.  67;  22  Fed. 
Cas.  326.  To  the  contrary  effect,  see  In  re  Vorback,  1  Pac.  Law  Rep.  100; 
28  Fed.  Cas.  1278. 

A  petition  for  a  discharge  was  filed  after  the  election  of  an  assignee, 
but  before  he  qualified.  The  court  dismissed  it  as  premature.  In  re 
Wheeler  et  al.,  5  Fed.  Rep.  299. 

An  objection  to  the  discharge  of  a  bankrupt  on  the  ground  that  his 
petition  was  prematurely  filed  cannot  be  waived,  as  it  is  the  duty  of  the 
court  to  see  that  the  law  is  complied  v^th  in  all  respects.    Ibid. 


128  The  Bankbuptct  Law. 

Under  the  Act  of  1867  the  bankrupt  was  required  to  apply  for  dis- 
charge within  one  year  from  the  adjudication.  In  re  Wilmott,  2  N.  B.  R. 
214;  30  Fed.  Cas.  87  (1868). 

The  authority  to  apply  for  a  discharge  is  derived  entirely  from  the 
Bankrupt  Act,  and  such  application  must  be  made  within  the  time  pre- 
scribed by  law.    In  re  Wood,  8  Ben.  237;  30  Fed.  Cas.  422  (1875). 

Although  the  Act  of  July  26,  1876,  extends  the  time  for  applying  for  a 
discharge  until  the  final  disposition  of  the  cause,  a  delay  of  six  years  in 
making  the  application,  if  opposed,  is  cause  for  refusing  it.  In  re  Har- 
rison, 22  Fed.  Rep.  528. 

The  bankrupts  gave,  as  a  reason  for  not  having  applied  for  a  discharge, 
that  a  petition  for  review  to  the  circuit  court  as  to  a  controversy  that  had 
arisen  during  the  proceedings,  which  was  returnable  November  19,  1870, 
had  not  been  brought  to  a  hearing  by  January,  1872.  Held,  that  as  they 
showed  no  reason  for  the  delay  in  bringing  the  petition  to  a  hearing,  the 
delay  in  applying  for  a  discharge  was  unreasonable.  In  re  Belden,  5 
Ben.  476;  3  Fed.  Cas.  80. 

Who  May  Opxxise  Discharge. 

A  creditor  who  has  not  proved  his  debt  cannot  be  heard  to  oppose  the 
discharge  of  the  bankrupt.  In  re  King,  1  N.  Y.  Leg.  Obs.  22;  14  Fed.  Cas. 
507  (1842);  In  re  Palmer,  18  Fed.  Cas.  1019;  In  re  Levy  et  al.,  2  Ben.  169; 
15  Fed.  Gas.  431.    But  see  the  following: 

It  is  not  necessary  to  enable  a  creditor  to  oppose  the  discharge  of  a 
bankrupt  that  his  debt  should  have  been  proved,  if  it  is  provable.  In  re 
Murdock,  1  Low.  362;  17  Fed.  Oas.  1010. 

It  was  held  in  this  case  that  any  creditor  could  oppose  a  bankrupt's 
discharge,  whether  he  had  proven  a  debt  in  bankruptcy  or  not.  In  re 
Shepard,  1  N.  B.  R.  439;  21  Fed.  Cas.  1250  (1868). 

Only  creditors  who  have  proved  their  debts,  or  are  clearly  shown  to 
be  bona  fide  creditors,  can  oppose  the  discharge  of  a  bankrupt.  In  re 
Boutelle,  2  N.  B.  B.  129;  3  Fed.  Cas.  1018. 

A  creditor  who  has  not  proved  his  debt  is  not  entitled  to  oppose  a  bank- 
rupt's discharge,  nor  one  who  was  not  injuriously  affected  by  the  acts 
complained  of.    In  re  Burk,  Deady,  425;  4  Fed.  Cas.  729. 

A  creditor  who  has  not  proved  his  debt,  but  whose  claim  is  taken  up 
on  the  bankrupt's  schedules,  is  competent  to  file  specifications  in  oppo- 
sition to  the  discharge.  In  re  Smith  et  al.,  8  Blatchf.  461;  32  Fed  Oas. 
390. 

Under  the  Act  of  1841  a  creditor  whose  claim  was  contingent  and 
liquidated  could  appear  in  opposition  to  the  discharge  of  a  bankrupt.  Ex 
parte  Traphagen,  1  N.  Y.  Leg.  Obs.  98;  24  Fed.  Cas.  134  (1842). 

An  equitable  claim  is  sufficient  to  qualify  the  claimant  to  oppose  a 
discharge.    In  re  Tebbetts,  5  Law  Rep.  259;  23  Fed.  Oas.  826  (1842). 

A  creditor  having  a  deficiency  judgment  has  a  claim  which  will  be 
released  by  a  discharge,  and  can  be  heard  on  the  question  of  discharge. 
In  re  Stansfleld,  4  Saw.  334;  22  Fed.  Oas.  1061. 


Bankrupts.  129 

A  creditor  who  has  accepted  a  dividend  from  an  unlawful  assignment 
by  the  bankrupt  may,  nevertheless,  object  to  his  discharge,  where  he  had 
no  power  to  avoid  such  assignment.    In  re  Kraft  et  al.,  3  Fed.  Rep.  892. 

A  fiduciary  creditor  cannot  object  to  the  discharge  of  the  banljrupt, 
inasmuch  as  his  debt  is  not  affected  by  the  discharge.  In  re  Elliott,  2 
N.  B.  R.  110;  8  Fed.  Oas.  540. 

The  fact  that  a  debt  was  created  by  fraud  does  not  authorize  the 
creditor  to  oppose  the  bankrupt's  discharge.  In  re  Doody,  2  N.  B.  R.  201; 
7  Fed.  Gas.  906. 

A  debt  that  was  created  by  a  fraud  is  not  covered  by  a  discharge  in 
bankruptcy,  and  It  follows  that  such  a  debt  cannot  be  urged  in  objection 
to  the  discharge.  In  re  Clarke,  2  N.  B.  R.  110;  5  Fed.  Oas.  942;  In  re 
Bashford,  2  N.  B.  R.  72;  2  Fed.  Gas.  1004. 

When  one  creditor  is  about  to  withdraw  his  opposition  to  a  discharge, 
the  court  may  permit  another  to  take  it  up  and  prosecute  it.  In  re 
Houghton,  2  Low.  328;  12  Fed.  Gas.  589. 

Under  the  Act  of  1867  a  creditor  could  come  in  at  any  time  before  the 
hearing  of  the  application  of  the  bankrupt's  discharge,  and,  upon  proving 
his  claim,  file  objections  to  a  discharge.  In  re  Longest,  7  Biss.  477;  15 
Fed.  Oas.  833. 

A  creditor  who  was  not  included  in  the  schedule,  w^ho  received  no 
notice  of  the  proceedings  and  did  not  prove  his  claim  or  receive  any 
dividend,  nevertheless  cannot  sue  on  his  debt  pending  the  discharge,  but 
must  appear  and  oppose  the  discharge.  In  re  Archenbrown,  11  N.  B.  R. 
149;  1  Fed.  Oas.  1084. 

A  creditor  to  whom  the  bankrupt  had  executed  a  bond  and  mortgage 
was  held  competent  to  oppose  his  discharge,  notwithstanding  she  had 
assigned  the  bond  and  mortgage  to  a  third  party  to  secure  a  debt,  and 
subsequently  assigned  all  her  property  and  credits  to  a  receiver  appointed 
in  pursuance  of  a  creditor's  bill.  In  re  Ely,  5  Law  Rep.  323;  8  Fed.  Gas. 
598  (1843). 

After  the  return  day  of  an  order  to  show  cause  why  the  bankrupt 
should  not  be  discharged,  creditors  sought  to  intervene  in  support  of  the 
objections  filed  by  a  creditor  whose  claim  had  been  expunged.  Their 
objections  were  dismissed.  In  re  McDonald,  14  N.  B.  R.  4/77;  16  Fed. 
Gas.  36. 

A  creditor  who  had  taken  judgment  against  the  bankrupt  after  adjudi- 
cation sought  to  oppose  the  discharge.  Held,  that  he  could  only  be  heard 
on  filing  a  stipulation  to  satisfy  his  judgment  of  record  if  the  discharge 
should  be  granted.    In  re  Gallison  et  al.,  2  Low.  72;  9  Fed.  Oas.  1009. 

A  judgment  creditor  of  a  bankrupt  filed  a  creditor's  bill  against  him 
and  his  wife  asking  that  a  conveyance  to  the  latter  be  set  aside  as 
fraudulent.  The  bill  was  dismissed  on  its  merits.  'This  was  held  to  be 
an  estoppel  against  the  plaintiff  in  that  suit  from  opposing  the  defendant's 
discharge  in  bankruptcy  on  account  of  such  conveyance.  In  re  Antisdel, 
18  N.  B.  R.  289;  1  Fed-  Oas.  1054. 
9 


130  The  Bankeuptct  Law. 

The  bankrupt  or  any  creditor  may  contest  the  right  of  a  creditor  who 
has  not  proved  his  debt  to  oppose  the  discharge  of  the  bankrupt.  In  re 
Oohaus,  6  Fed.  Cas.  12  (1842). 

A  power  of  attorney  in  pursuance  of  form  No.  26,  under  the  Bank- 
rupt Act  of  1867,  was  held  not  to  authorize  the  attorney  to  oppose  the 
bankrupt's  discharge.  Creditors  v.  Williams,  4  N.  B.  R.  579;  9  Fed.  Cas. 
793. 

The  term  "  persons  Interested  "  in  the  Act  of  1841  was  held  to  mean 
those  who  have  a  direct  interest  in  the  matter  immediately  In  controversy, 
and  not  merely  a  remote  and  contingent  interest.  A  creditor  may  have 
a  right  to  prove  his  debt  without  having  a  right  to  contest  every  question 
that  arises  in  the  course  of  the  proceedings.  Button  et  al.  v.  Freeman,  5 
Law  Bep.  447;  8  Fed.  Cas.  175  (1842). 

A  creditor  objected  to  the  discharge  of  the  bankrupt  on  the  ground 
that  the  debt  was  contracted  by  fraud.  The  court  decided  that  he  could 
not  be  heard  because,  if  the  objection  were  true,  the  discharge  would 
not  afCsct  the  debt.    In  re  Stokes,  2  N.  B.  R.  212;  23  Fed.  Cas.  134. 

Pleadings  and  Practice. 

A  pleading  in  opposition  to  a  discharge  must  be  specific.  In  re  Hanson, 
2  N.  B.  R.  211;  11  Fed.  Cas.  463. 

A  court  of  bankruptcy  will  not  entertain  vague  and  general  charges  in 
opposition  to  a  discharge.    In  re  Tyrrel,  2  N.  B.  R.  200;  24  Fed.  Cas.  479. 

A  discharge  will  not  be  refused  upon  vague  and  general  specifications. 
In  re  Son,  2  Ben.  153;  22  Ffed.  Cas.  794. 

A  specification  in  opposition  to  a  discharge  that  a  debt  was  created  by 
fraud  was  stricken  out  on  motion.  In  re  Rosenfield,  1  N,  B.  R.  575;  20 
Fed.  Cas.  1202. 

Creditors  opposing  a  discharge  can  only  give  proof  of  acts  mentioned 
in  their  specifications.    In  re  Rosenfeld,  2  N.  B.  R.  116;  20  Fed.  Cas.  1198. 

Under  the  Act  of  1867,  specifications  in  opposition  to  the  discharge  of 
the  bankrupt  were  required  to  be  precise  and  definite,  and  to  set  forth 
fully  the  particular  facts  relied  upon.  In  re  Eidom,  3  N.  B.  R.  106;  8 
Fed.  Cas.  385. 

An  averment  that  the  aflBant  believes  that  the  bankrupt  has  a  large 
amount  of  personal  property  which  he  did  not  put  into  his  schedule  of 
assets  is  too  vague  to  be  triable.  In  re  Mclntire,  2  Ben.  345;  16  Fed.  Cas. 
150. 

When  a  bankrupt  has  taken  the  required  oath,  his  discharge  should  only 
be  refused  when  some  creditor  has  filed  specifications  of  his  opposition 
thereto,  upon  which  an  issue  can  be  joined  and  the  bankrupt  can  be 
heard  in  his  own  defense.  In  re  Antisdel,  18  N.  B.  R.  289;  1  Fed.  Cas. 
1054. 

Specifications  in  opposition  to  the  bankrupt's  discharge  stated  that  he 
had  destroyed  books  and  papers  with  intent  to  defraud  his  creditors;, 
that  he  removed  books  from  the  district  with  like  intent,  and  that  he  had 


"Bankrupts.  131 

bribed  certain  creditors  to  assent  to  liis  discharge.  These  were  held  to 
be  too  vague  to  be  triable.    In  re  Freeman,  4  Ben.  245;  9  Fed.  C'as.  750. 

Specifications  in  opposition  to  a  discharge  of  the  bankrupt  on  the  ground 
that  he  had  omitted  property  from  his  schedule  and  concealed  it,  should 
state  what  property  he  had  concealed  and  omitted,  and  that  the  omissions 
were  willful,  fraudulent  or  negligent.  In  re  Beardsley,  1  N.  B.  R.  304; 
2    Fed.  Cas.  1175. 

It  is  not  a  sufficient  specification  of  opposition  to  a  discharge  to  allege 
that  the  bankrupt  had  concealed  his  effects  or  removed  and  destroyed 
books  or  writings.  It  must  be  stated  what  property  was  concealed,  and 
what  books  and  writings  were  destroyed.  In  re  Condict,  19  N.  B.  R.  142; 
6  Fed.  Cas.  267. 

Specifications  of  opposition  to  a  discharge  should  be  as  exact  as  an  In- 
dictment, and  it  is  not  sufficient  to  follow  the  words  of  the  statute.  In  re 
Butterfield,  5  Biss.  120;  4  Fed.  Cas.  919. 

Under  section  29  of  the  Act  of  1867,  a  specification  in  opposition  to 
discharge  that  alleged  that  the  bankrupt  "  fraudulently  neglected  and 
willfully  omitted  to  include  "  certain  specified  property  was  held  insuffi- 
cient, as  there  was  no  allegation  of  willful  false  swearing.  In  re  Keefer, 
4  N.  B.  R.  389;  14  Fed.  Cas.  172. 

Specifications  in  opposition  to  the  discharge  which  stated  that  the  bank- 
rupt had  concealed,  etc.,  part  of  his  property  were  held  to  be  defective 
in  that  they  did  not  describe  the  property  so  concealed.  In  re  Mauson,  2 
Ben.  332;  16  Fed.  Cas.  1192. 

A  specification  in  opposition  to  discharge  alleged  that  the  bankrupt  had 
mutilated  and  falsified  his  papers.  Judge  Blatchford  held  his  allegation 
to  be  defective  because  it  did  not  charge  that  the  act  was  done  with 
intent  to  defraud  his  creditors.  In  re  Marston,  5  Ben.  313;  16  Fed.  Cas. 
857. 

Allegations  in  opposition  to  the  discharge  of  a  bankrupt  must  be 
distinct,  precise  and  specific.  Where  false  swearing  is  charged  it  must 
aver  that  the  false  swearing  was  willful  and  upon  material  fact.  In  re 
Rathbone,  2  Ben.  138;  2  Fed.  Cas.  307. 

In  specifications  in  opposition  to  the  discharge  of  a  bankrupt  the  allega- 
tions must  be  such  as  to  give  the  bankrupt  reasonable  notice  of  the 
grounds  relied  upon.  If  false  swearing  is  alleged,  it  must  be  charged  to 
have  been  willful.    In  re  Smith  et  al.,  5  N.  B.  B.  20;  22  Fed.  Cas.  398. 

Held,  that  before  a  creditor  could  have  a  trial  under  section  31  of  the 
Act  of  1867,  his  specification  of  objections  must  be  sufficiently  definite  to 
enable  the  court  to  see  that  there  was  a  question  of  fact  to  be  determined 
upon  evidence  outside  of  the  records.  In  re  Waggoner,  1  Ben.  532;  28 
Fed.  Cas.  1326. 

All  grounds  against  the  discharge  to  be  relied  upon  by  opposing 
creditors,  except  those  that  appear  upon  the  face  of  the  proceedings,  which 
the  court  is  bound  to  notice  even  though  no  creditor  oppose,  must  be 
assigned  in  writing  as  specifications.  In  re  Seabury,  10  N.  B.  R.  90;  21 
Fed.  Cas.  900  (1874). 


133  The  Bankeuptcy  Law. 

A  specification  filed  against  a  discliarge  cliargiiig  the  concealment,  by 
the  bankrupt,  from  his  assignee,  of  "  certain  papers,"  tlie  papers  being  a 
receipt  for  notes  on  which  judgments  were  recovered,  was  held  bad  as 
being  vague  and  uncertain.    In  re  Carrier,  47  Fed.  Rep.  438. 

Certain  creditors  who  had  not  proved  their  claims  until  after  the  re- 
turn day  of  the  order  to  show  cause  why  the  bankrupt  should  not  be 
discharged,  thereupon  opposed  the  discharge.  It  was  held  that  they  could 
only  be  heard  on  distinct  specifications  of  fraud.  In  re  Balmer,  3  Hughes, 
637;  2  Fed.  Cas.  560. 

It  is  proper  practice  for  a  bankrupt  to  demur  to  the  grounds  of  oppo- 
sition to  his  discharge  when  they  are  insuflBclent  in  law.  In  re  Burk, 
Deady,  425;  4  Fed.  Cas.  729. 

The  burden  is  on  the  opposing  creditors  to  show  the  discharge  should 
not  be  granted  to  the  bankrupt.  In  re  Herdic,  1  Fed.  Rep.  242;  In  re 
O'Kell,  2  N.  B.  R.  105;  18  Fed.  Cas.  633  (1868).  To  the  same  effect,  under 
the  Law  of  1841,  Anon.,  3  N.  Y.  Leg.  Obs.  155;  1  Fed.  Cas.  1016  (1845). 

The  court  may  permit  opposition  to  a  discharge  to  be  made  at  any  time 
before  the  discharge  is  granted,  but  a  creditor  has  no  absolute  right  to 
oppose  after  the  return  day.  In  re  Houghton,  2  Low.  328;  12  Fed.  Cas. 
589. 

The  trial  on  objections  to  the  discharge  of  a  bankrupt  firm  may  be 
joint,  but  the  verdicts  and  decrees  must  be  several.  In  re  George  et  al., 
1  Low.  409;  10  Fed.  Oas.  193. 

Held,  that  a  debtor  owing  both  fiduciary  and  ordinary  debts  could  not 
receive  a  discharge  if  oppos6d  by  any  public  or  fiduciary  creditor,  and  that 
there  could  be  no  certificate  of  partial  discharge,  or  of  general  discharge 
with  partial  effect.    In  re  Parker,  1  Pa.  L.  J.  370;  18  Fed.  Cas.  1111. 

Where  a  bankrupt  has  both  partnership  and  individual  debts,  a  ma- 
jority in  number  and  value  of  the  aggregate  of  both  was  held  suflicient 
to  authorize  his  discharge  under  the  Act  of  1867,  though  a  majority  of 
either  class  did  not  assent.    In  re  Morrell,  1  Hask.  542;  17  Fed.  Cas.  779. 

A  court,  on  a  proper  showing,  will  grant  relief  where  creditors  fail  to 
file  specifications  in  opposition  to  a  discharge  within  ten  days  from  the 
return  day  to  show  cause.    In  re  Grefe,  2  N.  B.  R.  329;  10  Fed.  Cas.  1184. 

Certain  creditors  made  charges  of  fraud  against  a  bankrupt,  and  asked 
for  an  order  for  his  examination,  and  that  the  time  to  show  cause  why 
he  should  not  be  discharged  be  extended  until  after  the  examination. 
The  register  refused  to  make  the  order,  but  the  court  decided  that  it 
should  have  been  made.    In  re  Belden  et  al.,  4  Ben.  225;  3  Fed.  Cas.  79. 

Where  the  bankrupts  had  been  examined  by  the  assignee  on  their  ap- 
plication for  a  discharge,  and  the  creditors  had  had  an  opportunity  to 
examine  them,  the  court  refused  to  grant  the  petition  of  the  latter  for 
another  examination.    In  re  Isador  et  al.,  2  Ben.  123;  13  Fed.  Cas.  67. 

It  was  held  that  the  time  fixed  by  rule  24  under  the  Bankrupt  Act  of 
1867,  within  which  specifications  could  be  filed  in  opposition  to  a  dis- 
charge, could  be  enlarged  by  the  court  either  before  or  after  the  expira- 
tion of  the  time.    In  re  Levin,  7  Buss.  231;  15  Fed.  Cas.  421. 


Bankrupts.  133 

Where  the  counsel  opposing  the  discharge  is  prevented  from  being 
present  at  the  hearing  by  a  sudden  accident,  and  the  opposing  creditors 
are  thereby  prevented  from  being  represented,  the  court  will,  on  a  proper 
showing  of  merits,  recall  the  decree  of  discharge  and  reopen  the  case. 
In  re  Dupee,  2  Low.  18;  8  Fed.  Gas.  108. 

After  a  banlvrupt  has  applied  for  his  discharge,  and  notices  have  been 
given,  though  tlie  discharge  has  not  been  formally  granted,  a  creditor 
will  not  be  allowed  to  file  charges  in  opposition.  If  the  creditor  dis- 
covered frauds,  the  true  course  is  for  him  to  require  the  bankrupt  to 
take  his  discharge,  and  then  petition  for  a  revocation.  In  re  Fowler,  2 
Low.  122;  9  Fed.  Gas.  615. 

Judge  Nixon  of  the  United  States  district  court  for  New  Jersey  decided 
that  the  creditors  must  take  the  initiative  in  opposing  the  discharge  of  a 
bankrupt,  and  that  if  they  were  silent,  the  court  could  not  be  expected 
to  refuse  the  discharge.  In  re  Clark  et  al.,  19  N.  B.  R.  301;  5  Fed.  Gas. 
8.j5. 

It  was  held  in  Maine  that  a  creditor  of  a  bankrupt,  and  accordingly  his 
executor  or  legal  representative,  was  not  a  competent  witness  on  a  hear- 
ing in  opposition  to  his  discharge;  but  where  an  executor  is  a  trustee  for 
the  bankrupt,  he  may  be  a  witness.  In  re  Perley,  4  N,  Y.  Leg.  Obs.  254; 
19  Fed.  Gas.  255. 

A  creditor  of  a  bankrupt  in  voluntary  proceedings  is  a  competent  wit- 
ness in  support  of  objections  to  his  discharge  filed  by  other  creditors. 
In  re  Day,  7  Fed.  Gas.  217. 

A  creditor  who  had  made  specifications  in  opposition  to  the  discharge 
of  the  baiikrupt,  which  were  not  sustained  in  proof,  v.'as  held  liable  to 
the  bankrupt  for  the  costs  of  the  hearing.  In  re  Robinson  et  al.,  3  N.  B. 
R.  70;  20  Fed.  Gas.  982. 

A  creditor  opposing  the  discharge  of  a  bankrupt  cannot  move  to  dismiss 
the  petition  for  want  of  prosecution,  but  should  move  to  have  it  set 
down  for  a  hearing.    In  re  Sutherland,  Deady,  473;  23  Fed.  Gas.  457. 

After  the  day  appointed  for  the  hearing  on  an  order  to  show  cause 
why  the  bankrupt  should  not  be  discharged,  a  creditor  cannot  enter  his 
appearance  in  opposition  thereto.     Ibid. 

Held,  under  the  Act  of  1867,  that  where  a  meeting  under  an  order  to 
show  cause  why  the  bankrupt  should  not  be  discharged  was  adjourned, 
the  time  to  file  objections  ran  from  the  adjourned  day.  In  re  Tallman, 
2  Ben.  404;  23  Fed.  Gas.  678. 

On  an  order  to  show  cause  why  the  bankrupt  should  not  be  discharged, 
evidence  of  fraud  in  the  creation  of  a  debt  is  not  admissible.  In  re 
Tallman,  2  Ben.  348;  23  Fed.  Gas.  678. 

The  court  of  bankruptcy  may  refuse  a  discharge  of  its  own  motion,  in 
the  absence  of  opposition  by  creditors,  where  the  record  shows  that  the 
bankrupt  had  done  an  act  that  would  bar  his  discharge  under  the  statute. 
In  re  Sohoo,  3  N.  B.  R.  215;  22  Fed.  Gas.  780. 

Where  the  court  sustains  exceptions  to  specifications  in  certain  respects, 
it  will  be  deemed  to  have  disallowed  them  in  all  other  respects.  In  re 
Duncan  et  al.,  18  N.  B.  R.  42;  8  Fed.  Gas.  9. 


134  The  Bankeuptct  Law. 

Wben  creditors  of  a  bankrupt  oppose  his  discharge,  their  appearance 
may  be  entered  and  specifications  filed,  although  several  adjournments  of 
the  case  have  been  had  after  the  return  of  the  rule  to  show  cause  against 
the  discharge.    In  re  Seabury,  10  N.  B.  R.  90;  21  Fed.  Cas.  900  (1874). 

The  right  to  examine  the  bankrupt  upon  an  application  for  a  discharge 
extends  to  any  creditor  having  a  provable  debt,  whether  it  has  been 
proved  or  not.    In  re  Groome,  1  Fed.  Rep.  464. 

A  creditor  cannot  have  a  new  trial  upon  specifications  in  opposition  to 
the  discharge  of  a  bankrupt  even  if  he  can  prove  facts  happening  since 
the  discharge  which  would  be  competent  in  evidence.  In  re  Corwin,  1 
Fed,  Rep.  847. 

The  bankrupt  had  been  allowed  to  amend  his  schedules  so  as  to  include 
property  which  had  been  omitted.  Held,  that  this  did  not  conclude  any 
creditor  from  availing  himself  of  any  specifications  of  opposition  to  the 
discharge  which  he  would  have  had  if  the  amendment  had  not  been  made. 
In  re  Watts,  3  Ben.  1G6;  29  Fed.  Cas.  433. 

In  the  case  cited,  the  court  held  that  it  was  its  duty  to  examine  the 
record  before  granting  a  discharge,  and  if  it  appeared  that  the  bankrupt 
was  not  entitled  thereto,  to  refuse  it,  although  creditors  interposed  no 
objection.    In  re  Wilkinson,  3  N.  B.  R.  286;  29  Fed.  Gas.  1253. 

The  bankrupt  having  made  a  second  application  for  a  discharge  after 
the  first  had  been  denied,  it  was  held  that  the  testimony  of  a  witness 
on  the  first  hearing  was  competent  evidence  on  the  second,  the  witness 
having  died  in  tlie  meantime.    In  re  Brockway,  12  Fed.  Rep.  69. 

After  issue  joined  on  specifications  against  discharge  and  evidence 
taken,  it  is  too  late  to  amend  by  interposing  a  distinctly  new^  ground  of 
objection.     In  re  Graves,  24  Fed.  Rep.  550. 

Proofs  taken  on  first  application  for  discharge  are  competent  on  second 
application.  Indeed,  a  refusal  of  discharge  is  conclusive  against  the 
bankrupt,  and  is  a  bar  to  a  second  application.  In  re  Brockway,  23  Fed. 
Rep.  583. 

Creditors  cannot  object  to  the  jurisdiction  of  the  court  in  bankruptcy 
proceedings  for  the  first  time  in  opposition  to  the  discharge.  Allen  v. 
Thompson,  10  Fed.  Rep.  116. 

The  bankrupt  must  conform  to  all  the  requirements  of  the  law  before 
he  can  receive  his  discharge.  In  re  Orne,  1  N.  B.  R.  79;  18  Fed.  Cas. 
823  (1867). 

The  bankrupt  applied  for  a  discharge  in  1868,  and  it  was  alleged  in 
opposition  that  in  1861  he  had  made  a  fraudulent  assignment,  and  that 
he  still  had  in  his  hands  a  large  amount  of  assets  that  he  pretended  to 
have  included  in  that  assignment.  The  court  said:  "Whether  such  a 
state  of  facts,  if  proved,  would  not  amount  to  a  fraud  within  the  meaning 
of  the  twenty-ninth  section  which  would  defeat  a  discharge  is  a  question 
which  I  am  not  inclined  to  pass  upon  finally  by  denying  a  motion  like  the 
present.  Leave  will  accordinsly  be  given  to  take  proofs  in  support  of 
these  averments."    In  re  Moore,  2  Ben.  325;  17  Fed.  Oas.  661. 


Bankhupts.  13a 

Objections  to  a  discharge  must  rest  upon  the  particulars  designated  in 
the  statute  as  causes  for  refusing  it.  Such  matters  as  concern  only  the 
regularity  of  the  proceedings  should  be  brought  forward  on  the  first 
notice,  or  after  the  decree  of  bankruptcy  they  will  be  regarded  as  waived. 
In  re  Banks,  1  N.  Y.  Leg.  Obs.  274;  2  Fed.  Gas.  755  (1^8). 

Objections  were  filed  to  the  discharge  of  a  bankrupt  on  the  grounds  that 
he  had  placed  his  property  in  the  hands  of  his  wife;  that  he  had  withheld 
his  books  and  papers,  and  that  he  had  been  guilty  of  fraud.  This  was 
held  to  be  too  vague,  but  Judge  Blatchford  allowed  the  creditor  to  amend 
his  specifications  and  referred  the  matter  to  a  register  tp  take  further 
testimony.  In  doing  so  he  said:  "  The  issues  to  be  tried  and  decided 
will  be  the  allegations  in  the  specifications,  and,  as  the  bankrupt  has 
taken  and  subscribed  the  oath  required  by  section  29  of  the  Act  (1867),  the 
burden  will  be  upon  the  creditor  to  show  that  the  bankrupt  has  forfeited 
his  title  to  the  discharge  by  haying  done  some  of  the  things  specified  in 
section  29,  as  grounds  for  withholding  a  discharge."  In  re  Hill,  2  Ben. 
136;  12  Fed.  Gas.  146. 

A  creditor  seeking  to  oppose  the  discharge  of  a  bankrupt  must  observe 
the  rules  prescribed  by  the  supreme  court  of  the  United  States  in  that 
behalf.    In  re  McVey,  2  N.  B.  R.  257;  16  Fed.  Gas.  352. 

Judge  Blatchford  held  under  the  Act  of  1867  that  the  withdrawal  of  the 
bankrupt's  appearance,  and  a  default  on  a  motion  for  an  adjudication, 
would  not  estop  them  from  denying  the  allegations  in  the  petition  In 
subsequent  proceedings  for  their  discharge.  In  re  Lathrop  et  al.,  3  N.  B. 
R.  46;  14  Fed.  Gas.  1175. 

It  was  claimed  before  Judge  Drummond  that  the  Act  of  1867  did  not 
authorize  the  discharge  of  an  involuntary  bankrupt.  The  judge  decided, 
however,  that  if  the  bankrupt  had  acted  in  good  faith,  there  was  no 
reason  why  he  should  be  compelled  to  go  through  the  form  of  filing  a 
voluntary  petition.    In  re  Glark,  2  Biss.  73;  5  Fed.  Gas.  840. 

The  court  will  lend  its  aid  by  process  to  a  bankrupt  to  establish  facts 
necessary  to  his  discharge.  In  re  Plerson,  10  N.  B.  R.  193;  19  Fad.  Gas. 
668. 

It  was  held  to  be  proper  practice  under  the  Act  of  1867,  where  there 
was  no  opposition  to  the  discharge  of  a  bankrupt,  to  continue  the  pro- 
ceedings from  day  to  day  to  suit  his  convenience.  In  re  Sutherland, 
Deady,  473;  23  Fed.  Gas.  457. 

An  adjournment  of  the  examination  of  a  bankrupt  having  been  had,  it 
was  held  that  proceedings  upon  an  order  to  show  cause  why  the  discharge 
should  not  be  granted  should  be  continued  until  after  such  examination. 
In  re  Mauson,  1  N.  B.  R.  271;  16  Fed.  Gas.  1194. 

Proceedings  on  an  order  to  show  cause  why  the  bankrupt  should  not 
be  discharged  may  properly  be  adjourned  until  the  completion  of  an 
examination  of  the  bankrupt  then  pending.  In  re  Thompson,  2  Ben.  166; 
23  Fed.  Gas.  1018. 

When  there  are  no  objections  to  a  discharge  of  a  bankrupt,  it  is  proper 
practice  for  the  court  to  allow  the  schedules  to  be  amended  to  correct 


136  The  Bankbuptcy  Law. 

omissions,  and  to  continue  the  case  for  furtlier  proceedings.  In  re 
Townsend,  2  Fed.  Rep.  559. 

Wliere  tlie  case  on  tlie  return  day  of  the  notice  to  show  cause  against 
a  discharge  is  adjourned  without  day,  the  proceedings  'are  terminated 
and  a  new  notice  is  required.  Adjournments  shouid  be  talien  on  the 
return  day,  and  subsequently,  in  order  that  full  examinations  of  the 
bankrupts  and  others  may  be  had,  if  desired,  on  the  question  of  discharge. 
In  re  Sechendorf,  2  Ben.  462;  1  N.  B.  R.  626;  21  Fed.  Cas.  957  (1868). 

The  banlirupt  is  entitled  to  his  discharge  only  upon  the  showing  he 
makes  on  the  return  of  the  rule  to  show  cause  against  it.  He  should  not 
be  permitted  to  come  in  afterward  and  obtain  it  without  further  notice, 
and  upon  an  entirely  different  showing.  In  re  Seaman,  19  N.  B.  R.  332; 
21  Fed.  Oas.  913  (1879). 

Sufficient  Grounds  of  Opposition. 

It  was  not  necessary  that  the  bankrupt  should  have  been  convicted  of 
any  of  the  offenses  made  misdemeanors  by  section  44  of  the  Bankrupt 
Act  of  1867  in  order  to  make  them  available  in  opposition  to  a  discharge. 
In  re  George  et  al.,  1  Low.  409;  10  Fed.  Cas.  193. 

A  preference  barred  a  discharge  under  the  Act  of  1867  only  when  the 
bankrupt  contemplated  bankruptcy,  or  had  good  grounds  for  believing 
that  he  was  insolvent;  but  it  was  not  necessary  that  the  creditor  receiving 
it  should  have  known  that  his  debtor  vras  insolvent.  In  re  Gay,  1  Hask. 
108;  10  Fed.  Cas.  105. 

A  discharge  was  refused  where  the  bankrupt,  after  he  had  stopped 
business,  and  was  actually  insolvent,  conveyed  parts  of  his  property  to  a 
creditor  to  an  amount  exceeding  the  claim,  and  soon  after  filed  a  petition 
in  voluntary  bankruptcy.  In  re  Pearce,  2  N.  Y.  Leg.  Obs.  267;  19  Fed. 
Gas.  50. 

Where  it  is  charged  in  opposition  to  the  bankrupt's  discharge  that  he- 
has  not  made  a  full  disclosure  of  his  property,  the  facts  must  be  estab- 
lished by  strong  circumstantial  evidence,  in  the  absence  of  direct  testi- 
mony.   Ibid. 

A  debtor  made  an  assignment  for  the  benefit  of  his  creditors,  and  four 
days  afterward  filed  a  petition  in  bankruptcy.  He  denied  on  the  hearing 
that  when  he  made  the  assignment  he  had  any  intention  of  proceeding  in 
bankruptcy,  but,  there  being  no  other  proof  to  that  effect,  his  discharge 
was  refused.    In  re  Brodhead,  3  Ben.  106;  4  Fed.  Cas.  201. 

The  petitioner  in  involuntary  bankruptcy  had  carried  on  an  extensive 
business  in  his  wife's  name,  but  had  kept  no  account  of  his  dealings  as 
her  agent,  and  she  had  never  paid  him  or  agreed  to  pay  him  anything 
for  his  services.  This  was  held  to  be  sufficient  ground  for  refusing  the 
discharge.    In  re  Hill,  2  Bon.  .349;  12  Fed.  Cas.  147. 

A  discharge  was  refused  where  a  bankrvipt  had  conveyed  all  of  his 
individual  property  to  his  wife  in  consideration  of  a  loan  made  twenty 
years  previous  and  barred  by  the  statute  of  limitations.  In  re  Antisdel, 
18  N.  B.  R.  289;  1  Fed.  Cas.  1054. 


Bankrupts.  137 

On  the  day  that  the  Act  of  1811  wen  into  effect,  a  debtor  confessed 
judgment  in  favor  of  one  of  his  creditors  to  an  amount  exceeding  the 
value  of  his  property.  A  discharge  was  refused  though  the  debt  was 
actually  due.    In  re  Chase,  22  Vt.  U49;  5  Fed.  Cas.  517  (1812). 

A  bankrupt  held  a  note  against  his  father.  Shortly  before  the  com- 
mencement of  proceedings,  he  took  certain  exempt  property  in  part  pay- 
ment, and  then  sold  the  note  to  a  brother-in-law,  receiving  other  exempt 
property  in  payment.  A  discharge  was  refused.  In  re  Leavitt,  1  Hask. 
194;  15  Fed.  Cas.  1*22. 

Under  the  Act  of  1867  the  court  refused  a  discharge  to  a  bankrupt  who 
had  made  an  assignment  to  secure  a  pre-existing  indebtedness,  while  he 
was  insolvent,  and  when  the  giving  of  the  security  was  not  a  part  of  the 
original  transaction.    In  re  Foster,  2  N.  B.  R.  232;  9  Fed.  Cas.  520. 

Where  a  debtor  made  several  conveyances  to  his  wife  in  January,  and 
filed  his  voluntary  petition  in  bankruptcy  in  May,  it  was  held  that  he 
was  not  entitled  to  a  discharge.  In  re  Adams,  3  N.  B.  R.  561;  1  Fed. 
Cas.  83. 

The  specification  In  opposition  to  the  discharge  of  the  bankrupt  was 
that  he  had  concealed  property  in  the  hands  of  his  brother.  He  stated  on 
examination  that  the  money  had  been  paid  to  his  brother  in  discharge 
of  an  indebtedness;  but  the  proof  of  the  existence  of  the  indebtedness  was 
unsatisfactory.  The  discharge  was  refused.  In  re  Goodrldge,  2  N.  B. 
R.  324;  10  Fed.  Oas.  613. 

A  bankrupt  who  has  possession  of  any  property  or  books  of  account 
of  the  firm  of  which  he  was  a  member,  and  fails  to  disclose  them  to  his 
assignee  in  separate  proceedings,  _is  not  entitled  to  a  discharge.  In  re 
Beal,  1  Low.  325;  2  Fed.  Oas.  IIOt". 

An  act  that  would  otherwise  prevent  the  discharge  of  a  bankrupt  can- 
not be  excused  because  it  was  done  on  the  advice  of  counsel,  except 
under  circumstances  that  negative  any  possibility  of  bad  faith.  In  re 
Finn,  8  N.  B.  R.  525;  9  Fed.  Cas.  72. 

An  alien  who  has  made  preferences  while  residing  out  of  the  United 
States,  and  subsequently  came  within  this  country  and  filed  a  petition 
In  bankruptcy,  is  not  entitled  to  a  discharge.  In  re  Goodfellow,  1  Low. 
510;  11  Fed.  Oas.  594. 

A  firm  had  made  a  general  assignment  for  the  benefit  of  its  creditors, 
and  the  assignee  had  set  apart  some  of  the  assets  to  one  of  the  partners 
as  exemptions.  Later,  the  partners  commenced  proceedings  in  voluntary 
bankruptcy.  The  court  held  that  under  the  circumstances  a  discharge 
could  not  be  granted.    In  re  Croft  et  al.,  8  Biss.  188;  6  Fed.  Cas.  838. 

A  discharge  was  refused  to  a  bankrupt  who  procured  the  assent  of 
one  of  his  creditors  by  a  promise  to  pay  him  "  all  he  ever  owed  him  when 
he  got  able."    In  re  Ekings,  6  Fed.  Rep.  170. 

The  bankrupt  had  received  a  part  of  the  profits  of  a  firm,  his  interest 
standing  in  his  wife's  name.  He  stated  in  his  Inventory  that  he  had  no 
assets.    It  was  held  that  he  was  guilty  of  perjury  and   concealment. 


138  The  Bankeuptcy  Law. 

and  a  discharge  was  refused.  In  re  Ratlibone,  1  N.  B.  R.  536;  20  Fed. 
Cas.  314. 

A  decree  by  a  state  court  that  a  conveyance  of  real  estate  by  the  bank- 
rupt to  his  wife  was  void  was  held  not  to  be  conclusive  in  bankruptcy; 
but  at  the  same  time  the  court  of  bankruptcy  held  that  the  conveyance 
was  made  with  intent  to  defraud  his  creditors,  and  thereupon  denied  a 
discharge.    In  re  Sumner,  10  Ben.  34;  23  Fed.  Oas.  382. 

The  fact  that  the  bankrupt  had  contracted  fiduciary  debts  before  the 
passage  of  the  act  will  not  prevent  his  discharge  as  io  other  debts,  but 
the  misapplication  of  trust  funds  after  the  passage  of  the  act  is  sufficient 
to  defeat  a  discharge  from  any  debt.  In  re  Tebbetts,  5  Law  Rep.  259; 
23  Fed.  Cas.  826  (1842). 

In  the  case  cited,  the  court  refused  to  grant  a  discharge  where  the 
assent  of  one  of  the  creditors  was  procured  by  a  pecuniary  considera- 
tion, notwithstanding  it  was  paid  by  a  third  person.  In  re  Whitney  et 
al.,  2  Low.  455;  29  Fed.  Cas.  1068. 

Under  section  29  of  the  Act  of  1867,  it  was  held  to  be  a  sufficient 
reason  for  refusing  a  discharge  that  the  bankrupt  had  concealed  the 
title  of  property  by  placing  it  in  some  other  person's  name.  This  deci- 
sion was  made  in  a  case  where  the  bankrupt  had  made  a  pretended  sale 
which  was  declared  fraudulent  by  a  state  court,  and  had  failed  to  enter 
the  property  covered  by  the  fraudulent  sale,  on  his  schedule.  In  re  Huss- 
man,  2  N.  B.  R.  737;  12  Fed.  Cas.  1078. 

Setting  forth  a  false  and  fictitious  debt  in  a  schedule  is  an  admission 
of  it  against  his  estate,  and  a  bar  to  a  discharge  under  the  Act  of  1867; 
but  the  burden  is  on  the  objecting  creditors  to  show  that  such  debt  was 
false  and  fictitious.  In  re  Orcutt,  4  N.  B.  R.  538  (Quarto  176);  18  Fed.  Cas. 
757. 

A  bankrupt  who  had  suffered  a  judgment  to  be  taken  against  him  by 
default  in  favor  of  his  brother,  and  all  his  property  sold  and  the  pro- 
ceeds applied  upon  the  judgment,  was  denied  a  discharge  under  sub- 
division 9  of  section  5110,  R.  S.    In  re  Pitts,  8  Fed.  Rep.  263. 

A  discharge  was  refused  under  the  Act  of  1807  (section  5110,  R.  S.), 
where  the  bankrupt  had  lost  money  by  gaming,  and  thereby  reduced  his 
assets.    In  re  Signer,  20  Fed.  Rep.  236. 

Where  a  creditor  had  consented  to  the  discharge  of  a  bankrupt  for  a 
valuable  consideration,  it  was  held  that  he  could  not  set  up  the  transac- 
tion in  opposition  to  a  discharge,  but  that  other  creditors  could  do  so. 
In  re  Bright,  9  Fed.  Rep.  491. 

A  bankrupt  who  loses  at  gambling  is  not  entitled  to  a  discharge,  re- 
gardless of  whether  his  winnings  have  exceeded  his  losings.  So  held 
under  the  Act  of  1867.    In  re  Stewart,  21  Fed.  Rep.  398. 

A  discharge  was  refused  to  a  bankrupt  who  had  sold  a  piano  which 
he  had  taken  up  on  his  schedule  and  paid  the  proceeds  to  his  attorneys 
in  the  bankruptcy  proceedings.    In  re  Jessup,  19  Fed.  Rep.  94. 

Under  the  Act  of  18U7,  a  discharge  was  refused  to  a  bankrupt  who 
had  lost  property  In  gaming,  notwithstanding  he  acquired  it  in  the  same 


Bankeupts.  13D 

way,  and  had  no  other  occupation  but  that  of  gambling.     In  re  Mar- 
shall, 1  Low.  462;  16  Fed.  Cas.  827. 

Insufficient  Grounds  of  Opposition. 

The  fact  that  a  bankrupt  had  contracted  a  debt  of  a  fiduciary  character 
before  the  passage  of  the  Bankrupt  Act  was  held  not  to  prevent  his 
discharge  as  to  other  debts.  In  re  Lord,  5  Law  Rep.  258;  15  Fed.  Cas. 
872  (1842). 

Held,  under  the  circumstances  of  the  case,  that  conveyances  made 
by  a  bankrupt  to  his  sons  more  than  eight  months  prior  to  the  filing  of 
his  petition  were  not  a  sufficient  reason  for  refusing  a  discharge.  In 
re  Jewett,  3  Fed.  Rep.  503. 

A  discharge  will  not  be  refused  on  account  of  conveyances  made 
long  before  bankruptcy,  where  there  was  not  evidence  of  a  willful  con- 
cealment of  property.    In  re  Boynton,  10  Fed.  Rep.  277. 

It  is  mot  a  sufficient  reason  for  refusing  a  discharge  that  the  bank- 
rupt made  accidental  omissions  from  his  schedules.  In  re  Boynton,  10 
Fed.  Rep.  277. 

A  discharge  will  not  be  denied  to  a  bankrupt  on  account  of  acts  or 
omissions  by  a  former  partner.    In  re  Heller,  9  Fed.  Rep.  373. 

The  payment  of  attorney's  fees  by  the  bankrupt  was  held  not  to  be 
such  a  preference  as  would  bar  a  discharge  under  the  Act  of  1867.  In 
re  Boynton,  10  Fed.  Rep.  277. 

A  creditor  vnll  not  be  allowed  to  object  to  the  bankrupt's  discharge 
by  reason  of  the  omission  of  his  debt  from  the  schedule  with  his  own 
consent.    In  re  Whetmore,  Deady,  585;  29  Fed.  Cas.  921. 

It  was  held  not  to  be  necessarily  a  ground  for  refusing  a  discharge 
that  the  bankrupt  had  made  gifts  to  his  wife  and  daughter  previous  to 
the  commencement  of  proceedings,  notwithstanding  they  were  voidable 
by  his  creditors.    In  re  Warne,  12  Fed.  Rep.  431. 

It  is  not  an  evidence  of  fraud  on  the  part  of  a  bankrupt  that  he 
omitted  certain  claims  from  his  schedule  which  were  in  fact  worthless. 
In  re  Pearce,  2  N,  Y.  Leg.  Obs.  267;  19  Fed.  Cas.  50. 

A  specification  in  opposition  to  discharge  on  the  ground  that  the  bank- 
rupt had  transferred  certain  shares  of  stock  to  one  of  his  creditors  was 
overruled  upon  proof  that  the  bankrupt  in  fact  had  no  interest  in  the 
stock  in  question.    In  re  Penn  et  al.,  5  N.  B.  R.  288;  19  Fed.  Gas.  155. 

It  was  objected  to  the  discharge  of  a  bankrupt  that  he  had  omitted 
the  names  of  three  creditors  from  his  schedule.  It  appearing  that  the 
omission  was  with  their  consent,  the  objection  was  overruled.  In  re 
Needham,  1  Low.  309;  17  Fed.  Cas.  1275. 

Ten  years  before  the  passage  of  the  Bankrupt  Act,  the  bankrupt 
had  conveyed  property  to  his  wife,  and  he  omitted  this  property  from 
his  schedules.  It  was  not  established  that  he  had  any  Interest  in  the 
property  by  a  secret  trust.  These  facts  were  held  not  to  be  sufficient 
to  justify  the  court  in  refusing  a  discharge.  In  re  Murdock,  1  Low.  362; 
17  Fed.  Cas.  1010. 


140  The  BANKHurTCY  Law. 

The  bankrupts  had  paid  certain  creditors  to  vote  for  a  composition. 
The  composition  failed,  and  under  furtlier  proceedings,  the  bankrupts 
applied  for  a  discharge.  The  court  decided  that  an  act  done  during  the 
proceedings  for  a  composition,  notwithstanding  it  came  within  section 
29  of  the  Act  of  1867,  could  not  be  set  up  to  prevent  a  discharge.  In  re 
Morris  et  al.,  19  N.  B.  R.  Ill;  17  Fed.  Cas.  785. 

The  bankrupt  had  retired  from  business  many  years  before,  having 
sold  all  his  property,  but  leaving  some  of  his  debts  unpaid.  Thereafter 
he  lived  upon  his  salary  as  a  clerk,  and  paid  his  rent  and  other  ex- 
penses therefrom.  The  court  held  that  the  creditors  to  whom  he  had 
become  indebted  while  engaged  in  trade  could  not  take  advantage  of 
these  payments  in  opposition  to  his  discharge.  In  re  Locke,  1  Low.  293; 
15  Fed.  Cas.  734. 

It  was  held  under  the  Act  of  1841  that  where  a  debtor  in  contempla- 
tion of  bankruptcy  had  confessed  judgments  in  a  large  amount  for 
which  executions  were  issued  and  all  of  his  pToperty  sold  he  ,was  en- 
titled to  a  discharge  with  the  assent  of  a  majority  in  interest  of  his 
creditors  who  had  not  been  so  preferred.  Anon.,  1  N.  Y.  Leg.  Obs.  349; 
1  Fed.  Cas.  1015  (1843). 

After  the  passage  of  the  Act  of  1841,  but  before  it  went  into  operation, 
certain  debtors  made  an  assignment  for  the  benefit  of  preferred  cred- 
itors. It  was  held  that  this  would  not  prevent  their  discharge.  In  re 
Ohadwick  et  al.,  5  Law  Rep.  457;  5  Fed.  Gas.  398  (1842). 

It  was  held  under  the  Act  of  1867,  that  if  the  formal  requirements  of 
the  law  had  been  complied  with,  a  discharge  could  only  be  refused  on 
some  ground  set  forth  in  section  29.  In  re  Elliott,  2  N.  B.  R.  110;  8  Fed. 
Cas.  540. 

A  bankrupt  sold  property  for  cash  to  procure  means  to  defray  the 
expenses  of  the  proceedings.  The  property  was  sold  for  a  fair  price, 
and  the  amount  realized  was  reasonable.  This  was  held  not  to  be  ground 
for  refusing  a  discharge.    In  re  Keefer,  4  N.  B.  R.  389;  14  Fed.  Cas.  172. 

An  allegation  in  opposition  to  a  discharge  that  the  bankrupt  swore 
falsely  in  his  examination  must  be  proved  beyond  a  reasonable  doubt. 
In  re  Moore,  1  Hask.  134;  17  Fed.  Cas.  663. 

It  was  held  under  the  Act  of  1867  that  transactions  prior  to  the  passage 
of  the  law  could  not  be  heard  in  opposition  to  the  discharge  of  a  bank- 
rupt.   In  re  Moore,  1  Hask.  134;  17  Fed.  Cas.  663. 

The  fact  that  a  bankrupt  omitted  an  equity  of  redemption  from  his 
schedule  will  not  prevent  his  discharge.  In  re  Moore,  1  Hask.  134;  17 
Fed.  Cas.  663. 

The  court  granted  a  discharge  under  the  Act  of  1867  over  an  objec- 
tion specifying  an  act  of  bankruptcy  committed  a  long  time  before  the 
passage  of  the  bankrupt  law.  In  re  Keefer,  4  N.  B.  R.  389;  14  Fed  Cas. 
172. 

Construing  section  29  of  the  Act  of  18G7,  Judge  Dillon  said:  "But 
I  am  not  prepared  to  hold  that  merely  for  not  taking  a  too  hopeful 
view  of  his  affairs,   and  for  making  payments   in  the   course   of   his 


Bankkupts.  141 

business  with  the  hona  fide,  though  mistaken,  expectation  that  he  can 
keep  along  without  going  Into  bankruptcy,  there  being  no  actual  design 
to  favor  or  prefer,  the  intention  of  congress  was  to  deprive  the  party 
of  the  right  to  his  discharge,  if  otherwise  entitled  to  it."  In  re  Brent, 
2  Dill.  129;  4  Fed.  Cas.  59. 

To  justify  the  court  in  refusing  a  discharge  under  the  Act  of  1841, 
it  was  held  that  the  creditors  must  show  that  the  petitioner  has  con- 
cealed property.  It  is  not  sufficient  to  show  that  he  had  owned  prop- 
erty in  past  years,  and  that  he  had  managed  it  improvidently  and 
squandered  it.    In  re  Bailey,  1  N.  Y.  Leg.  Obs.  18;  2  Fed.  Cas.  358  (1842). 

Judge  Nelson  decided  under  the  Act  of  1867  that  giving  a  preference 
more  than  four  months  before  the  proceedings  in  bankruptcy,  or  making 
a  transfer  more  than  six  months  before,  would  not  prevent  the  dis- 
charge of  the  bankrupt.  In  re  Harper,  6  Chi.  Leg.  News,  279;  11  Fed. 
Cas.  572. 

Payments  of  money  or  transfers  of  property  to  preferred  creditors 
made  before  the  passage  of  the  Act  of  1867,  though  fraudulent,  were 
held  not  to  bar  the  discharge  of  the  bankrupt.  In  re  Hollenshade,  2 
Bond,  210;  12  Fed.  Cas.  340. 

The  Act  of  1867  does  not  authorize  the  court  to  refuse  a  discharge 
for  a  fraud  committed  before  the  passage  of  the  Act.  In  re  Jones,  2 
Low.  451;  13  Fed.  Cas.  932. 

When  the  bankrupts  had  suffered  great  losses  by  trusting  their  busi- 
ness to  a  relative,  who  had  defrauded  and  deceived  them,  and  there 
was  nothing  to  show  complicity  on  their  part,  the  court  decided  that 
discharges  must  be  granted  to  them.  In  re  Beatty  et  al.,  3  Ben.  233;  3 
Fed.  Cas.  8. 

When  one  partner  assuming  to  act  for  the  firm  gave  a  fraudulent 
preference  without  the  knowledge  or  assent  of  the  other  partner,  it  was 
held  that  the  latter  should  not  be  refused  a  discharge.  In  re  Leavitt, 
1  Hask.  194;  15  Fed.  Cas.  122. 

Where  a  preferred  creditor  abandons  his  security  and  proves  his  debt, 
the  preference  is  condoned  and  cannot  be  urged  in  opposition  to  the 
bankrupt's  discharge.    In  re  Conner  et  al.,  1  Low.  532;  6  Fed.  Cas.  312. 

A  bankrupt  swore  on  examination  that  he  had  paid  certain  creditors 
In  full  a  short  time  before  filing  his  petition.  It  was  held  that  this  was 
not  sufficient  ground  for  withholding  a  discharge.  In  re  Burgess,  3  N. 
B.  R.  196;  4  Fed.  Cas.  725. 

Transactions  that  occurred  long  before  the  passage  of  the  Bankrupt 
Act  of  1867,  were  held  to  be  available  for  use  in  opposition  to  the  dis- 
charge of  the  bankrupt.    In  re  Oretiew,  5  N.  B.  E.  423;  6  Fed.  Cas.  810. 

Payments  to  domestic  servants  cannot  be  urged  in  opposition  to  a 
discharge,  nor  payments  to  an  attorney  for  past  and  future  services.  In 
re  Rosenfeld,  2  N.  B.  K.  116;  20  Fed.  Cas.  1198. 

The  burden  of  proof  is  on  creditors  opposing  a  bankrupt's  discharge 
to  show  that  assets  have  been  concealed.  Mutilation  of  bankrupt's 
books  is  not  conclusive  of  fraud,  but  the  circumstances  may  be  ex- 
plained.   In  re  Noonan,  18  Fed.  Cas.  297  (1869). 


143  The  Bankeuptct  Law. 

The  omission  from  a  schedule  of  property  not  known  by  the  bankrupt 
as  belonging  to  him  Is  not  a  "  concealment,"  and  Is  no  bar  to  a  discharge. 
In  re  Parker,  4  Biss.  501;  18  Fed.  Cas.  1110. 

It  appeared  that  the  bankrupt  had  paid  the  attorney's  fees  of  certain 
creditors,  but  that  before  such  payment  was  made  or  promised,  they 
had  stated  that  they  would  not  oppose  his  discharge.  It  was  held  that 
the  facts  were  not  sufficient  to  prevent  the  discharge.  In  re  Mauson,  2 
Ben.  412;  16  Fed.  Cas.  1193. 

Under  the  Law  of  1867  a  fraudulent  conveyance  or  preference  made 
before  the  passage  of  the  Act  were  not  available  In  opposition  to  a  dis- 
charge.   In  re  Rosenfield,  1  N.  B.  R.  575;  20  Fed.  Oas.  1202. 

There  is  nothing  in  the  Bankrupt  Act  of  1867  that  prohibits  a  debtor 
from  requesting  a  creditor  to  file  a  petition  against  him  to  be  adjudged 
a  bankrupt.  In  the  absence  of  fraud,  such  request  will  not  constitute 
a  bar  to  the  bankrupt's  discharge.  In  re  Ordway,  19  N.  B.  B.  171;  18 
Fed.  Oas.  760. 

Under  the  Act  of  1867  there  might  be  a  preference  which  would  sup- 
port proceedings  in  Involuntary  bankruptcy,  and  yet  not  bar  the  dis- 
charge of  the  debtor.    In  re  Pierson,  10  N.  B.  R.  107;  19  Fed.  Cas.  661. 

The  execution  of  an  assignment  for  the  benefit  of  creditors  less  than 
a  month  before  the  debtor  filed  a  petition  1^  bankruptcy,  was  held  not  to 
bar  a  discharge  in  the  absence  of  actual  fraud,  under  the  Act  of  1867, 
notwithstanding  it  was  an  act  of  bankruptcy  under  section  39.  In  re 
Pierce  et  al.,  3  N.  B.  R.  258;  19  Fed.  Oas.  680. 

The  property  of  the  bankrupt  was  under  attachment  when  he  filed 
his  petition,  and  he  subsequently  confessed  judgment  and  permitted  the 
property  to  be  sold.  This  was  held  not  to  be  an  objection  to  his  dis- 
charge under  the  Act  of  1841.  In  re  Reed,  3  N.  Y.  Leg.  Obs.  262;  20 
Fed.  Oas.  417  (1844). 

A  discharge  will  not  be  refused  for  the  reason  that  a  debt  was  created 
through  the  frauds  and  false  representations  of  the  bankrupt.  In  re 
Bathbone,  2  Ben.  138;  20  Fed.  Cas.  307. 

It  was  held  not  to  be  a  sufficient  ground  for  refusing  the  discharge  of 
a  debtor  that  he  had  wasted  his  estate,  and  made  fraudulent  purchases. 
In  re  Rodgers,  1  Low.  423;  20  Fed.  Oas.  1104. 

The  omission  of  a  debt  from  a  schedule,  which  was  not  intentional,  is 
not  sufficient  ground  for  refusing  a  discharge.  In  re  Tebbetts,  5  Law 
Rep.  259;  23  Fed.  Cas.  826  (1842). 

it  was  held  not  to  be  a  sufficient  ground  for  refusing  a  discharge 
under  the  Act  of  1867,  that  the  bankrupt  had  paid  the  attorney's,  notary's 
and  register's  fees  of  certain  creditors.  In  re  Venson,  9  Biss.  69;  23  Fed. 
Oas.  480. 

The  mere  omission  of  property  from  the  bankrupt's  schedule,  with- 
out Intent  to  conceal  or  defraud,  was  held  not  to  be  sufficient  ground  for 
refusing  a  discharge.    In  re  Smith,  1  Woods,  478;  22  Fed.  Cas.  412. 

Whether  the  specification  be  that  the  bankrupt  has  concealed  his  effects 
or  has  sworn  falsely  to  his  inventory,  the  act  must  appear  to  be  In- 


Bankhupts.  143 

tentional  in  order  to  preclude  a  discharge.  In  re  Wyatt,  2  N.  B.  R.  288; 
30  Fed.  Cas.  719  (1868). 

Wliere  a  discharge  was  opposed  on  account  of  a  fraudulent  act  of  the 
bankrupt,  it  was  held  that  such  act  must  have  occurred  within  such 
time  before  the  adjudication  as  to  malie  it  an  act  of  banliruptcy  under 
the  bankrupt  law.    In  re  Woolf skill,  5  Saw.  385;  30  Fed.  Oas.  415  (1879). 

The  discharge  of  the  bankrupts  was  opposed  on  the  ground  that  the 
debt  was  created  while  they  were  acting  in  a  fiduciary  capacity.  It 
was  held  that  this  was  no  ground  for  withholding  a  discharge,  and  that 
the  creditor  must  show  the  fact  in  reply  to  a  plea  of  the  discharge  in  a 
suit  on  her  claim.    In  re  Tracy  et  al.,  2  N,.  B.  R.  298;  24  Fed.  Oas.  112. 

"  Proper  Books  of  Account." 

What  constitute  proper  books  of  account  is  considered  at  length  in 
the  case  cited.    In  re  Smith,  16  Fed.  Rep.  465. 

Failing  to  enter  amounts  withdrawn  for  stock  speculation  is  ground  for 
refusing  a  discharge,  for  not  keeping  proper  books  of  account.  In  re 
Hunt,  26  Fed.  Rep.  739. 

The  court  refused  to  permit  amendments  to  specifications  in  opposi- 
tion to  a  discharge  of  the  bankrupt  for  the  purpose  of  opposing  the 
discharge  of  one  of  the  partners  who  had  nothing  to  do  with  the  books, 
which  were  kept  by  the  other  partners  to  whose  discharge  he  had  con- 
sented.   In  re  Smith,  16  Fed.  Rep.  465. 

Incorrect  method  of  bookkeeping,  and  failing  to  enter  items  of  sales  for 
cash,  but  ascertaining  total  cash  sales  each  day  by  deducting  amount 
on  hand  each  morning,  was  held  to  be  not  such  improper  bookkeeping 
as  would  prevent  a  discharge  under  the  Act  of  1867.  In  re  Graves,  24 
Fed.  Rep.  550. 

Where  imperfections  and  omissions  in  the  bankrupt's  books  of  ac- 
count are  relied  upon  in  opposition  to  a  discharge,  they  should  be  clearly 
specified.  If  the  books  are  such  that  his  financial  condition  can  be  ascer- 
tained with  substantial  accuracy,  the  discharge  should  not  be  refused. 
In  re  Frey,  9  Fed.  Rep.  376. 

A  discharge  was  denied  where  the  bankrupt  had  kept  no  cash-book 
or  invoice-book,  and  where  the  books  that  he  had  kept  failed  to  ex- 
plain satisfactorily  the  condition  of  his  business  affairs.  In  re  Brock- 
way,  12  Fed.  Rep.  69. 

A  failure  to  enter  notes  and  drafts  of  a  large  amount  which  the  banlc- 
rupts  had  received  and  discounted  was  held  to  be  sufficient  reason  for 
vrithholding  a  discharge.    In  re  Williams,  13  Fed.  Rep.  30. 

The  bankrupt  had  sworn  that  he  had  not  kept  certain  books  of  ac- 
count, but  later  he  found  and  produced  them.  In  the  absence  of  evi- 
dence that  his  false  swearing  was  intentional,  a  discharge  was  granted. 
In  re  Warne,  10  Fed.  Rep.  877. 

The  bankrupt,  who  was  a  member  of  a  firm,  had  omitted  from  the 
firm  books  certain  accommodation  notes  given  by  him  individually,  and 
also  the  receipt  of  certain  money  from  an  agent  of  the  firm,  which,  how- 


144  The  Bankeuptcy  Law. 

ever,  were  entered  on  a  separaie  book.  The  omissions  were  held  not  to 
be  sufficient  to  prevent  his  discharge.    In  re  Jewett,  3  Fed.  Rep.  503. 

The  books  that  were  produced  did  not  constitute  proper  books  of  ac- 
count, but  it  appeared  that  one  wf  the  bankrupts,  who  had  absconded, 
took  with  him  the  casli-book.  Held,  that  the  facts  did  not  constitute  a 
sufficient  objection  to  a  discharge.    In  re  Kraft  at  al.,  4  Fed.  Rep.  523. 

Held,  under  the  Act  of  1867,  that  the  existence  of  obscurity  in  the 
books  of  a  bankrupt  did  not  offer  any  reason  to  refuse  a  discharge,  when' 
the  obscurity  was  explained,  and  the  entries  were  made  without  fraud  or 
deceit.    In  re  Townsend,  2  Fed.   Rep.   559. 

In  the  case  cited,  a  discharge  was  refused  for  a  failure  to  keep  proper 
books  of  account,  notwithstanding  such  books  as  the  bankrupt  kept, 
with  the  invoices  on  file,  might  have  enabled  an  accountant  to  make  out 
proper  statements.    In  re  Bernia,  5  Fed.  Rep.  723. 

After  selling  out  his  store  the  bankrupt  engaged  in  the  business  of 
buying  and  selling  apples,  partly  on  his  own  account  and  partly  in 
connection  with  another.  His  omission  to  keep  books  of  account  was 
held  to  deprive  him  of  his  right  to  a  discharge.  In  re  Tyler,  4  N.  B.  R. 
104;  24  Fed.  Oas.  457. 

The  bankrupts  were  dealers  in  bark  and  lumber.  They  had  no  other 
cash-book  but  their  bank  account,  but  each  member  of  the  firm  kept  a 
book  showing  disbursements,  and  to  whom  made.  It  was  held  that  these 
constituted  proper  books  of  account.  In  re  Marsh  et  al.,  19  N.  B.  R. 
297;  16  Fed.  Gas.  792. 

Under  the  Act  of  1867, '  a  failure  by  a  merchant  to  keep  proper  books 
of  account  was  a  ground  for  refusing  a  discharge,  whether  or  not  the 
omission  was  with  fraudulent  intent.  In  re  Solomon,  2  N.  B.  R.  285;  22 
Fed.  Oas.  787. 

A  bankrupt  kept  his  cash  account  on  slips,  and  only  entered  the  footings 
of  these  slips  on  his  cash-book,  so  that  it  was  impossible  to  tell  for  what 
purpose  the  items  were  disbursed.  These  were  held  not  to  be  proper 
books  of  account.    In  re  Perry  et  al.,  19  Fed.  Gas.  264. 

A  retail  merchant  testified  that  he  kept  no  invoice-book,  but  that  he 
preserved  his  invoices  carefully  so  that  a  complete  account  of  all  goods 
received  by  him  could  be  made  out,  and  also  kept  a  set  of  books  in  usual 
form.  The  court  overruled  an  objection  to  his  discharge  on  the  ground 
that  he  had  not  kept  proper  books  of  account.  In  re  Reed,  12  N.  B.  R. 
390;  20  Fed.  Gas.  417. 

Some  years  before  the  passage  of  the  Bankrupt  Act  o^  1841,  the  debtor 
had  committed  a  fraud  in  an  assignment  for  the  benefit  of  his  creditors. 
It  was  held  that  this  would  not  bar  his  discharge  under  that  act.  In 
re  McFarlan,  IG  Fed.  C&s.  89  (1812). 

A  bankrupt  who  had  not  kept  a  cash-book,  journal  or  ledger  was  re- 
fused a  discharge  on  the  ground  that  he  had  not  kept  proper  books  of 
account.  At  the  same  time  it  was  held  that  the  absence  of  the  cash- 
book  alone  would  not  be  sufficient  to  prevent  a  discharge  if  receipts  and 
payments  appeared  from  other  books.  In  re  Hannahs,  8  Ben.  475;  11 
Fed.  Gas.  445. 


Bankeupts.  145 

A  discharge  was  refused  where  the  bankrupt  was  a  member  of  a  firm 
which  had  sold  Its  stock  to  another  firm  consisting  of  the  same  partners 
with  one  other,  and  had  made  no  entry  of  the  sale  on  the  books  of  the 
old  firm.   .In  re  Colcord,  2  Hask.  455;  6  Fed.  Oas.  33. 

A  discharge  will  not  be  refused  on  account  of  accidental  omissions 
of  entries  in  the  bankrupt's  books  of  account.  In  re  Burgess,  8  N.  B.  R. 
196;  4  Fed.  Cas.  725. 

The  books  of  a  bankrupt  firm  did  not  show  the  condition  of  accounts 
between  the  partners.  A  discharge  was  refused.  In  re  Jorey  et  al.,  2 
Bond,  336;  13  Fed.  Cas.  1122. 

The  bankrupts  had  kept  no  cash-book  for  ten  months  and  it  was 
impossible  to  ascertain  their  condition  from  their  books  of  account.  A 
discharge  was  refused.    In  re  Bellis  et  al.,  4  Ben.  53;  3  Fed.  Cas.  135. 

"  Proper  books  of  account "  are  such  as  will  enable  a  competent  ac- 
countant to  ascertain  the  condition  of  the  bankrupt's  affairs.  In  re 
Wartenbach,  11  N.  B.  R.  61;  2  Fed.  Cas.  956. 

A  discharge  was  refused  to  a  bankrupt  who  was  a  tradesman  and 
who  had  not  kept  an  invoice  or  stock-book.  In  re  White,  2  N.  B.  R.  590; 
29  Fed.  Cas.  966. 

The  bankrupt  had  engaged  for  a  short  time  in  the  business  of  buying 
and  selling  tobacco  and  cigars,  and  in  that  business  had  kept  no  boolfs 
of  account.  The  business  had  been  closed  out,  and  there  were  no  debts 
due  to  or  fronl  him  arising  from  that  business.  Held,  that  the  fact 
that  he  had  not  kept  books  of  account  could  not  be  urged  against  his 
discharge.    In  re  Freldberg,  19  N.  B.  B.  302;  9  Fed.  Cas.  815. 

S.  and  B.  were  associated  in  business  under  an  agreement  which  was 
held  not  to  amount  to  a  partnership.  B.,  the  bankrupt,  kept  proper 
books  of  account  with  his  customers,  but  nothing  to  show  the  state  of 
his  accounts  with  S.  A  discharge  was  refused.  Later,  a  pass-book  was 
produced  in  which  the  transactions  between  B.  and  S.  were  entered 
every  day.  Thereupon  a  discharge  was  granted.  In  re  Blumenthal,  18 
N.  B.  B.  555,  575;-  3  Fed.  Cas.  757,  758. 

By  the  twenty-ninth  section  of  the  Bankrupt  Act  of  1867,  it  was  pro- 
vided that  no  discharge  shall  be  granted  if  the  bankrupt  being  a  mer- 
chant or  tradesman  has  not  subsequently  to  the  passage  of  the  act  kept 
proper  books  of  account.  If  account-books  are  not  kept  the  discharge 
must  be  refused  even  though  such  failure  was  the  result  of  no  intent  to 
defraud  creditors  or  to  conceal  the  condition  of  his  business.  The  keep- 
ing of  mere  memorandum-books  which  fall  to  show  particulars  and  con- 
struction of  debts  due  to  and  by  the  creditors  and  debtors  of  the  bankrupt 
is  not  keeping  of  such  proper  books  as  are  required  by  the  twenty-ninth 
section  of  the  Act.    In  re  Numan,  1  Chi.  Leg.  News,  123;  18  Fed.  Cas.  96. 

The  bankrupts  had  failed  to  enter  on  their  books  several  important 
transactions  relating  to  their  property.  A  discharge  was  refused.  In  re 
Grieves  et  al.,  15  Alb.  L.  J.  167;  11  Fed.  Oas.  3. 

10 


146  The  Bankhtjptot  Law. 

Where  a  trader's  books  were  not  posted  to  date,  and  the  accounts  were 
kept  on  separate  pieces  of  paper,  a  charge  of  failure  to  keep  proper 
books  of  account  will  not  be  sustained.  In  re  Hammond  et  al.,  1  Low. 
381;  11  Fed.  Cas.  380. 

The  bankrupt  kept  a  wharf  where  he  sold  wood  and  coal.  Books  of 
account  were  kept  by  a  skillful  clerk,  but  for  some  time  previous  to  liis 
discharge  he  had  no  cash  account.  A  discharge  was  refused.  In  re 
Littlefleld,  1  Low.  331;  15  Fed.  Cas.  624. 

The  burden  of  proof  is  on  a  creditor  who  opposes  a  discharge  on  the 
ground  that  the  bankrupt  had  not  kept  proper  books  of  account.  In  ro 
Banks,  1  N.  Y.  Leg.  Obs.  274;  2  Fed.  Cas.  755  (1843). 

Vague  parol  statements  about  the  condition  of  the  bankrupt's  books 
of  account  will  not  Justify  the  court  in  refusing  a  discharge;  the  evi- 
dence must  be  conclusive.    In  re  Batchelder,  1  Low.  373;  2  Fed.  Cas.  1012. 

Notwithstanding  only  one  partner  was  responsible  for  the  failure  to 
keep  proper  books  of  account,  a  discharge  will  be  refused  to  both.  In 
re  George  et  al.,  1  Low.  409;  10  Fed.  Oas.  193. 

A  memorandum-book  in  which  the  bankrupt  kept  the  time  of  em- 
ployees was  held  not  to  be  "  proper  books  of  account "  under  the  Act  of 
1867.    In  re  Garrison,  5  Ben.  430;  10  Fed.  Cas.  49. 

"Proper  books  of  account"  need  not  be  in  any  particular  form;  but 
they  must  be  sufficient  to  show  the  condition  of  the  bankrupt's  affairs. 
In  re  Gay,  1  Hask.  108;  10  Fed.  Oas.  106. 

A  bankrupt  who  conducted  a  strictly  cash  business,  which  had  been 
closed  out  several  months  before  the  filing  of  his  petition,  was  granted 
a  discharge,  notwithstanding  he  had  failed  to  keep  any  books  of  ac- 
count   In  re  Keach,  1  Low.  335;  14  Fed.  Cas.  156. 

It  will  not  excuse  a  debtor  who  has  failed  to  keep  proper  books  of 
account  that  the  failure  was  entirely  due  to  his  bookkeeper.  In  re  Ham- 
mond et  al.,  1  Low.  381;  11  Fed.  Cas.  380. 

Books  of  account  were  held  to  be  sufficient  that  presented  a  true  ac- 
count of  his  business,  and  not  of  his  personal  expenses.  In  re  McCarthy, 
15  Alb.  L.  J.  298;  15  Fed.  Cas.  1252. 

The  cash-book  of  the  bankrupt  firm  failed  to  show  in  an  intelligible 
or  proper  manner  the  nature  and  character  of  the  receipts  and  disburse- 
ments entered  in  it.  A  discharge  was  refused.  In  re  Mackay  et  al.,  4  N. 
B.  R.  06;  16  Fed.  Oas.  156. 

Miscellaneous. 

When  a  bankrupt's  discharge  is  refused,  a  creditor  who  has  provea 
his  debt  is  restored  to  his  former  rights  and  remedies.  Dingee  v.  Becker, 
9  N.  B.  K.  508;  7  Fed.  Oas.  724. 

A  discharge  in  bankruptcy  cannot  be  set  up  in  support  of  an  injunc- 
tion to  restrain  the  enforcement  of  n  judgment  in  a  state  court;  it  should 
have  been  pleaded  in  bar  to  the  action.  Goodrich  v.  Hunton,  2  Woods, 
137;  10  Fed.  Oas.  608. 


,   Bankrupts.  147 

A  discharge  in  bankruptcy  after  an  attacliment,  but  before  judgment, 
can  be  pleaded  in  bar,  so  as  to  prevent  the  attaching  creditor  from  per- 
fecting his  attachment  by  a  judgment.  Ex  parte  Foster,  2  Story,  131; 
9  Fed.  Cas.  508. 

A  verified  answer  in  a  suit  in  equity  by  the  banlcrupt  may  be  used 
against  him  in  bankruptcy.  Anon.,  1  N.  Y.  Leg.  Obs.  34:9;  1  Fed.  Cas.  1015 
(1843). 

The  record  is  conclusive  of  the  jurisdiction  of  a  court  In  bankruptcy 
unless  attacked  by  a  direct  proceeding.  Until  the  decree  has  been  set 
aside  in  such  a  proceeding,  the  discharge  of  a  bankrupt  cannot  be  op- 
posed on  the  ground  that  the  statements  in  the  petition  as  to  residence 
are  untrue.    In  re  Ives  et  al.,  5  Dill.  146;  13  Fed.  Cas.  181. 

A  discharge  does  not  in  any  manner  reinvest  the  bankrupt  with  con- 
trol of  the  estate  which  he  has  surrendered  in  bankruptcy.  In  re 
Anderson,  2  Hughes,  378;  1  Fed.  Oas.  881. 

The  presumption  Is  that  a  bankrupt  upon  his  discharge  has  taken  the 
final  oath  required,  when  such  oath  is  not  found  of  record.     In  re  Young, 

3  Dill.  239;  30  Fed.  Cas.  865  (1875). 

A  plea  of  discharge  under  the  Act  of  1841  which  set  out  the  certifi- 
cate and  discharge  was  held  to  be  good.  White  v.  Howe  et  al.,  3  McLean, 
291;  29  Fed.  Cas.  1019  (1842). 

A  discharge  In  bankruptcy  is  waived  by  failure  to  plead  it  Fowle  v. 
Parke,  48  Fed.  Rep.  789. 

Courts  of  law  or  equity  will  not  take  notice  of  a  discharge  in  bank- 
ruptcy as  a  defense  unless  It  is  pleaded.  It  cannot  be  taken  advantage  of 
by  motion  and  affidavit.  Fellows  et  al.  v.  Hall  et  al.,  3  McLean,  281;  8 
Fed.   Cas.   1132   (1843). 

The  discharge  of  an  assignee  in  bankruptcy  does  not  deprive  the  court 
of  its  jurisdiction  to  grant  a  discharge  to  the  bankrupt.    In  re  Forsyth, 

4  Fed.  Kep.  629. 

In  an  action  at  law  the  defendant  pleaded  a  discharge  In  bankruptcy. 
The  reply  set  forth  that  the  court  of  bankruptcy  had  no  jurisdiction. 
The  court  held  that  the  court  had  general  jurisdiction  in  bankruptcy, 
and  as  the  record  showed  jurisdiction,  it  should  not  be  impeached  when 
introduced  collaterally.  The  plaintiff  then  offered  evidence  of  fraud 
under  a  general  allegation,  and  the  court  held  that  specific  acts  must 
be  alleged  so  as  to  give  notice  to  the  bankrupt.  Lathrop  v.  Stewart,  6 
McLean,  630;  14  Fed.  Cas.  1185  (1855);  Lathrop  v.  Stuart,  5  McLean,  167; 
14  Fed.  Cas.  1185  (1850). 

An  omission  to  enter  an  order  refusing  a  discharge  may  be  corrected 
nunc  pro  tunc,  but  not  to  the  prejudice  of  any  intervening  rights  of  third 
persons.  In  re  Drlsco,  14  N.  B.  R.  541;  2  Low.  430;  7  Fed.  Cas.  1092, 
1104. 

[As  to  a  discharge  by  proceedings  for  a  composition,  see  notes  under  section  13,  subbead, 
"EfEeotof  Confirmation."] 


148  The  Bankeuptcy  I»aw. 

Eevocatioit. 
,'§  15.  Discharges,  when  Eevoked.— (a.)  The  judge  may,  upon  the 
application  of  parties  in  interest  who  have  not  been  guilty  of  undue 
laches,  filed  at  any  time  within  one  year  after  a  discharge  shall  have 
been  granted,  revoke  it  upon  a  trial  if  it  shall  be  made  to  appear  that 
it  was  obtained  through  the  fraud  of  the  bankrupt,  and  that  the  knowl- 
edge of  the  fraud  has  come  to  the  petitioners  since  the  granting  of  the 
discharge,  and  that  the  actual  facts  did  not  warrant  the  discharge. 

A  discharge  under  the  Act  of  1867  was  annulled  upon  evidence  that 
the  consent  of  a  creditor  was  obtained  by  a  promise  that  his  debt  should 
be  paid  in  full.    In  re  Marshal,  3  Fed.  Rep.  220. 

A  corporation  was  declared  bankrupt  upon  its  own  petition.  A  year 
later  a  stockholder  who  had  knowledge  of  the  facts,  filed  a  petition  to 
have  the  proceedings  vacated.  The  petition  was  denied  on  the  ground 
of  laches.    In  re  Bait.  Co.  D.  Ass'n,  2  Hughes,  250;  2  Fed.  Oas.  572. 

H.  received  his  final  discharge  in  May,  1869.  In  February,  1871,  two 
creditors  applied  to  have  the  discharge  set  aside,  and  proved  that  H. 
had  willfully  omitted  them  from  his  schedules  of  creditors  and  liabilities, 
and  that  they  had  no  knowledge  of  said  fact  until  after  the  granting  of 
the  discharge.  The  discharge  was  set  aside.  In  re  Herrick,  7  N.  B.  R. 
341;  12  Fed.  Oas.  41. 

A  surety  of  the  bankrupt  on  a  bond  to  dissolve  an  attachment,  paid 
the  debt  of  a  creditor  for  the  purpose  of  preventing  his  opposition  to  the 
discharge.  This  having  been  done  without  the  knowledge  of  the  bank- 
rupt, it  was  held  that  it  would  not  invalidate  the  discharge.  Ex  parte 
Brlggrj,  2  Low.  389;  4  Fed.  Gas.  113. 

The  court  refused  to  revoke  a  discharge  which  was  inadvertently 
granted  when  the  application  was  not  made  until  the  time  had  expired 
for  a  review  by  the  circuit  court,  and  the  bankrupt  had  engaged  in  new 
business  and  contracted  new  debts.  In  re  Buchstein,  9  Ben.  215;  4  Fed. 
Gas.  540. 

The  knowledge  that  is  sufficient  to  bar  a  creditor's  right  to  move 
for  the  revocation  of  a  discharge  must  be  such  that  he  could  have  availed 
himself  of  it  before  the  return  day  of  the  order  to  show  cause  why  the 
discharge  should  not  be  granted.  In  re  Fowler,  2  Low.  122;  9  Fed.  Cas. 
615. 

Creditors  petitioned  to  have  the  discharge  of  the  bankrupt  set  aside  on 
the  ground  of  errors  by  the  court,  and  fraud.  It  appeared  that  while 
the  court  below  erred  in  some  of  its  rulings,  the  errors  did  not  operate  to 
the  damage  of  the  petitioning  creditors;  also  that  the  evidence  offered  in 
proof  of  the  charges  of  fraud  was  inadmissible.  The  petition  was  dis- 
missed by  the  district  court,  and  its  action  was  sustained  by  the  circuit 
court  on  review.    Marionneaux's  Case,  1  Woods,  37;  16  Fed.  Oas.  754. 

The  court  refused  to  vacate  an  adjudication  on  an  application  made 
nearly  one  year  after  it  had  been  entered,   and  decided  that  the  cir- 


Bankrupts.  149 

cumstances  of  the  case,  recited  in  the  report,  did  not  excuse  tbe  delay. 
In  re  Meade,  19  X.  B.  E.  3:j.j;  lu  Fed.  Cas.  1281. 

It  will  not  be  presumed  in  the  circuit  court,  as  a  ground  for  reversing 
the  order  granting  the  discharge,  that  the  bankrupt  and  his  wife  were 
not  examined,  from  the  fact  that  the  record  failed  to  show  it,  there  hav- 
ing been  an  order  directing  such  examination.  The  register's  certificate 
is  not  necessary  to  the  bankrupt's  discharge.  Huntington  v.  Saunders, 
64  Fed.  Rep.  476. 

The  general  principle  is  that  jurisdictional  facts  will  be  presumed  in 
favor  of  the  jurisdiction;  and  the  court  refused  to  entertain  an  applica- 
tion to  annul  a  discharge  on  the  ground  that  one  of  the  members  of  the 
bankrupt  firm  did  not  reside  within  the  district,  and  the  firm  did  not  do 
business  therein.    Allen  v.  Thompson,  10  Fed.  Rep.  116. 

A  creditor  who  had  proved  his  debt  against  the  bankrupt  and  received 
his  dividend  filed  a  bill  in  the  circuit  court  to  vacate  the  discharge  on 
the  ground  of  fraud.  It  was  held  that  the  circuit  court  had  no  power  to 
entertain  such  a  bill;  that  the  district  court  in  which  the  adjudication  was 
had  had  jurisdiction,  and  the  court  considered  without  deciding  whether 
the  circuit  court  could  entertain  jurisdiction  of  such  a  bill  by  one  who 
was  not  a  party  to  the  proceedings.  Commercial  Bank  v.  Buckner,  20 
How.  108. 

The  court  refused  to  allow  a  creditor  who  was  contesting  the  validity 
of  a  discharge  to  amend  his  petition  by  adding  another  specification,  the 
discharge  having  been  granted  two  years  previously.  In  re  Simms,  9 
Fed.  Rep.  440. 

It  is  not  necessary  that  a  creditor  should  have  proved  his  debt  to 
enable  him  to  proceed  for  the  annulment  of  a  discharge.  In  re  Douglass, 
11  Fed.  Rep.  403. 

In  this  case  a  certificate  of  discharge  was  vacated  for  the  want  of  a 
notice  to  creditors  under  section  5109,  R.  S.  Allen  v.  Thompson,  10  Fed. 
Rep.  116. 

In  a  proceeding  to  annul  a  discharge  in  bankruptcy  (section  5120,  R.  S.), 
costs  may  be  awarded  to  the  prevailing  party.  In  re  Holgate,  8  Ben. 
255;  12  Fed.  Cas.  335. 

The  limitation  in  the  Act  of  1867  (section  5120,  R.  S.),  is  absolute,  and 
the  time  begins  to  run  from  the  date  of  the  discharge,  and  not  from  the 
discovery  of  the  alleged  fraud.  In  re  Brown,  19  N.  B.  R.  312 ;  4  Fed.  C^s. 
338. 

Under  the  Act  of  1867,  it  was  necessary  that  a  suit  to  set  aside  the 
discharge  of  a  bankrupt  should  be  commenced  within  two  years.  Pickett 
V.  McGavick,  14  N.  B.  R.  236;  19  Fed.  Cas.  588. 

The  period  of  limitation  to  a  petition  to  vacate  a  discharge  begins 
from  the  date  of  discharge,  and  not  from  the  discovery  of  the  fraud  on 
which  it  is  based.    Mall  &  Co.  v.  Ullrich,  37  Fed.  Rep.  653. 

In  support  of  a  motion  to  set  aside  a  discharge,  it  is  not  competent  to 
prove  acts  not  set  forth  in  the  specifications.  Tenny  et  al.  v.  Collins, 
4  N.  B.  R.  477;  23  Fed.  Cas.  848. 


150  The  Bankeijptct  Law. 

A  bankrupt  had  sold  his  farm  to  his  father-in-law,  who  deeded  It 
back  to  the  bankrupt's  wife  for  a  nominal  consideration.  The  deeds 
were  not  recorded.  The  wife  stated  to  him  that  both  deeds  were  burned, 
and  he  repeated  this  statement  to  creditors  and  procured  credit  on  such 
representation.  Later,  the  deeds  were  placed  on  record.  In  filing  a  peti- 
tion in  bankruptcy  he  omitted  the  property  from  his  schedules.  Upon 
the  facts  stated  the  court  held  that  he  had  been  guilty  of  concealment 
and  perjury,  and  the  discharge  was  set  aside.  In  re  Rainsford,  5  N.  B.  B. 
381;  20  Fed.  Cas.  188. 

When  a  creditor  filed  specifications  in  opposition  to  the  discharge  of  a 
bankrupt  which  were  decided  to  be  too  vague,  and  he  did  not  seek  to 
amend,  and  a  discharge  was  granted,  and  one  month  later  he  applied 
to  have  it  set  aside,  the  court  held  that  he  was  guilty  of  laches.  In  re 
Mclntire,  2  Ben.  345;  16  Fed.  Cas.  150. 

Co-Debtoks  and  Sureties. 
§  16.  Co-Debtors  of  Bankrupts. —  (a.)  The  liability   of  a  person 
who  is  a  co-debtor  with,  or  giaarantor  or  in  any  manner  a  surety  for,  a 
bankrupt   shall  not  be  altered  by  the  discharge  of  such  bankrupt. 

The  acceptance  of  a  composition  in  bankruptcy  proceedings  against 
the  principal  does  not  discharge  a  collateral  liability  for  the  same  debt. 
In  re  Burchell,  4  Fed.  Rep.  406. 

"  Neither  the  discharge  of  the  bankrupt,  nor  any  step  taken  by  the 
creditor  In  the  course  of  the  proceedings  in  bankruptcy  in  regard  to  his 
debt  against  the  bankrupt,  can  have  the  effect  to  release,  discharge,  or 
afCect  any  person  liable  for  the  same  debt  for  or  with  the  bankrupt  either 
as  partner,  joint  contractor,  indorser,  surety  or  otherwise."  In  re  Levy 
et  al.,  2  Ben.  169;  15  Fed.  Cas.  431. 

A  debtor,  who  had  been  arrested  In  a  civil  action,  gave  a  bond  with 
sureties.  Thereafter,  he  received  a  discharge  in  bankruptcy.  It  was 
held  under  the  Act  of  1867  (section  5067,  R.  S.),  that  the  discharge  re- 
leased the  judgment  and  the  obligation  of  the  sureties  on  the  bond,  and 
that  the  arrest  did  not  afford  any  lien  which  was  not  released  by  such 
discharge.    Long  v.  Dickerson,  15  Blatchf.  459;  15  Fed.  Cas.  825. 

Debts  Kot  Affected. 

§  17.  Debts  not  Affected  by  a  Discharge. —  (a.)  A  discharge  in 
bankruptcy  shall  release  a  bankrupt  from  all  of  his  provable  debts, 
except  such  as 

(1.)  Are  due  as  a  tax  levied  by  the  United  States,  the  State,  county, 
district,  or  municipality  in  which  he  resides; 

(2.)  Are  judgments  in  actions  for  frauds,  or  obtaining  property  by 
false  pretenses  or  false  representations,  or  for  willful  and  malicious 
injuries  to  the  person  or  property  of  another; 


Bankrupts.  151 

(3.)  HaTe  not  been  duly  scheduled  in  time  for  proof  and  allowance, 
with  the  name  of  the  creditor  if  known  to  the  bankrupt,  unless  such 
creditor  had  notice  or  actual  knowledge  of  the  proceedings  in  bank- 
ruptcy; or 

(4.)  Were  created  by  his  fraud,  embezzlement,  misappropriation,  or 
defalcation  while  acting  as  an  officer  or  in  any  fiduciary  capacity. 

\  Claims  of  the  United  States. 

Clalma  of  the  United  States  are  not  barred  by  a  discharge  in  banlt- 
ruptcy,  and  must  be  paid  in  full.    In  re  Huddell  et  al.,  47  Fed.  Rep.  206. 

Justice  Bradley  expressed  the  opinion  that  the  federal  government  is 
not  bound  by  a  discharge  under  the  Bankrupt  Act.  XJ.  S.  v.  The 
Rob  Roy,  1  Woods,  42;  27  Fed.  Cas.  873. 

Held,  under  the  Act  of  1800,  that  a  debt  due  the  United  States  on  a 
custom-house  bond  was  not  barred  by  a  discharge  in  bankruptcy.  U.  S. 
V.  King,  Wall.  Sr.  13;  26  Fed.  Cas.  788  (1802). . 

Held,  that  the  obligation  of  a  surety  on  the  bond  of  a  collector  of  in- 
ternal revenue  was  released  by  a  discharge  in  bankruptcy.  U.  S.  v. 
Throckmorton  et  al.,  8  N.  B.  R.  309;  28  Fed.  Cas.  158. 

Where  the  United  States  proved  its  debt  against  a  bankrupt  and  main- 
tained the  priority  of  its  claim,  it  was  held  that  the  debt  was  nevertlie- 
less  not  discharged  under  the  Act  of  1867.  U.  S.  v.  Herron,  20  Wall. 
251. 

A  discharge  under  the  Bankrupt  Act  of  1841  was  held  to  cover  a 
debt  due  the  United  States  on  account  of  customs  duties.  U.  S.  v. 
Zerega,  28  Fed.  Cas.  804  (1856). 

The  surety  of  a  postmaster  was  held  to  be  entitled  to  a  discharge  under 
the  Bankrupt  Act  of  1841,  and  may  plead  his  discharge  in  bar  of  a  suit 
by  the  government.  U.  ,Sl.  v.  Davis,  3  McLean,  483;  25  Fed.  Cas. 
780  (1844). 

[But  observe  that  by  the  language  of  the  above  section,  the  exception  is  limited  to  taxes 
"  levied  by  the  United  States,"  etc.] 

Debts  Cteated  by  Fraud. 

The  Act  of  1867  excepted  debts  incurred  by  fraud  from  a  discharge  In 
bankruptcy.  Held,  that  the  word  means  actual  fraud  and  such  as 
involves  moral  turpitude.  Neil  v.  Clark,  95  U.  S.  704;  Strang  v.  Bradner, 
114  id.  555. 

Construing  the  word  "  fraud "  as  found  in  section  5117,  R.  S.,  the 
supreme  court  held  that  it  means  an  act  involving  moral  turpitude  or 
intentional  wrongdoing,  and  not  merely  a  fraud  in  law.  Noble  v. 
Hammond,  129  U.  S.  65. 

A  discharge  in  bankruptcy  does  not  release  a  debt  incurred  by  fraud, 
notwithstanding  it  was  proved  and  a  dividend  paid  upon  it.  Nell  v. 
Clark,  95  U.  S.  704;  Strang  v.  Bradner,  114  id.  555. 


153  The  Bankeuptcy  Law. 

A  debt  created  by  fi-aud,  but  reduced  to  a  judgment  for  money  only, 
is  not  covered  by  a  discharge  in  bankruptcy.  Warner  v.  Cronkhite,  6 
Biss.  453;  29  Fed.  Cas.  243. 

A  suit  by  a  purchaser  of  land  sold  by  an  assignee  of  the  bankrupt 
against  a  grantee  under  a  conveyance  that  Is  a  fraud  on  creditors  is 
not  barred  by  a  discharge  in  bankruptcy.  Bartles  v.  Gibson,  17  Fed. 
Kep.  293. 

In  deciding  vrhether  a  debt  was  contracted  by  fraud,  the  district  court 
is  not  bound  by  the  decision  of  a  state  court,  but  may  consider  all  legal 
evidence.    In  re  Alsberg,  16  N.  B.  E.  116;  1  Fed.  Cas.  557. 

In  determining  v\riiether  a  debt  Is  discharged  In  bankruptcy,  a  fraud 
committed  by  one  partner  In  conducting  the  business  of  the  firm  is 
chargeable  to  the  firm,  though  the  other  members  were  In  fact  ignorant 
of  it.    Strang  v.  Bradner,  114  U.  S.  555. 

Where  a  person  had  collected  money  for  another,  and  Involuntary 
proceedings  were  commenced  against  him  before  he  pays  It,  it  was  held 
that  the  indebtedness  was  not  created  by  fraud,  embezzlement  or  in  a 
fiduciary  capacity  within  the  exception  In  section  5117,  R.  S.  Noble 
V.  Hammond,  129  U.  S.  65. 

A  plea  of  discharge  in  bankruptcy  will  not  be  sustained  against  a  bill 
in  equity  to  rescind  a  contract  on  the  ground  of  fraud.  Smith  v.  Bab- 
cock  et  al.,  2  Woodb.  &  M.  246;  22  Fed.  Cas.  432. 

A  bankrupt  having  bought  from  his  assignee  a  judgment  against 
another  bankrupt  who  has  been  discharged,  it  was  held  that  the  pur- 
chase carried  the  assignee's  title,  and  the  judgment  being  based  on  a 
fraudulent  conversion,  the  discharge  in  bankruptcy  was  no  bar  to  Its 
enforcement  and  collection  in  full,  although  the  purchaser  was  a  co- 
defendant  in  the  judgment.    Balllet  v.  Seeley,  34  Fed.  Rep.  300. 

A  creditor  whose  claim  was  created  by  a  fraud,  proved  It  In  bank- 
ruptcy and  received  a  dividend.  It  was  held  that  he  did  not  thereby 
waive  his  right  to  bring  an  action  for  the  balance  of  the  debt.  In  re 
Clews,  19  N.  B.  R.  109;  5  Fed.  Cas.  1047. 

A  judgment  had  been  entered  against  the  bankrupt  before  the  com- 
mencement of  proceedings,  but  an  appeal  from  an  order  of  arrest  on  the 
ground  that  the  debt  was  fraudulently  created  was  determined  after 
the  filing  of  the  petition,  and  the  order  of  arrest  affirmed.  It  was  held 
that  the  debt  would  not  be  discharged  In  bankruptcy,  notwithstanding  it 
was  in  judgment,  and  that  an  execution  would  not  be  stayed  under  the 
Act  of  1867  (section  5106,  R.  S.)  In  re  Pitts,  19  N.  B.  R,  63;  19  Fed.  Cas. 
750. 

A  debt  is  "  created  by  fraud  "  within  the  meaning  of  the  Act  of  1867, 
when  the  debtor  contracted  it  without  intending  to  pay  it  in  whole 
or  In  part.  Under  the  terms  of  that  law  the  bankrupt  is  not  entitled  to 
a  discbarge  as  to  such  a  debt.  In  re  Alsberg,  16  N.  B.  R.  116;  1  Fed.  Cas. 
557. 

A  bankrupt  Is  not  released  by  his  discharge  from  a  claim  in  equity 
to  rescind  a  contract  on  the  ground  of  fraud.  Doggett  v.  Emerson,  1 
Woodb.  &  M.  195;  7  Fed.  Cas.  821  (1846). 


Bankrupts.  153 

Debts  created  by  fraud  are  not  affected  by  a  discharge  in  banliruptcy; 
hence  tliey  cannot  be  used  as  grounds  for  opposing  a  discharge.  In  re 
Bashford,  2  N.  B.  R.  T2;  2  Fed.  Cas.  1004. 

The  provisions  of  a  composition  will  not  be  enforced  by  the  court  of 
banliruptcy  against  a  creditor  who  has  obtained  a  judgment  by  default 
in  a  state  court  upon  a  debt  contracted  by  fraud,  inasmuch  as  the  debt 
would  not  be  affected  by  the  discharge.  In  re  Tooker,  8  Ben.  390;  24  Fed. 
Cas.  51. 

Fiduciary  Debts. 

An  Indebtedness  by  a  banlirupt  as  guardian,  being  a  fiduciary  demand, 
is  not  affected  by  his  discharge  in  banliruptcy.  In  re  Maybin,  15  N.  B. 
R.  468;  16  Fed.  Cas.  121. 

A  discharge  in  a  general  form  does  not  affect  fiduciary  debts,  unless 
they  have  been  proved  in  the  proceedings.  In  re  Tebbetts,  5  Law  Rep. 
259;  23  Fed.  Cas.  826  (1842). 

The  obligation  of  a  surety  on  a  guardian's  bond  is  not  a  fiduciary  debt, 
and  is  covered  by  a  discharge  in  banliruptcy.  Ex  parte  Taylor,  1  Hughes, 
617;  23  Fed.  Cas.  727. 

The  oiflce  of  register  of  the  land  office  was  held  to  be  "  fiduciary " 
under  the  Bankruptcy  Act  of  1841.  Ex  parte  Wright,  1  West.  L.  J.  143; 
30  Fed.  Cas.  655  (1843). 

Under  the  Act  of  1800,  a  bankrupt  could  be  discharged  from  other 
debts,  notwithstanding  the  existence  of  fiduciary  debts  incurred  before 
the  passage  of  the  Act.    Chapman  v.  Forsyth,  2  How.  202. 

A  pledgee  who  hypothecates  the  pledged  property  to  secure  a  debt  due 
from  himself,  and  fails  to  return  it  to  the  original  pledgor,  does  not 
thereby  create  a  debt  by  fraud,  or  in  a  fiduciary  capacity.  Hennequin 
V.  Clews,  111  U.  S.  676. 

To  establish  a  fiduciary  character  within  the  meaning  of  the  Bank- 
rupt Act,  there  must  be  something  more  than  circumstances  under  which 
a  trust  or  confidence  Is  reposed  in  the  debtor  according  to  the  popular 
acceptance  of  the  term.    Upshur  v.  Brisco,  138  U.  S.  365. 

The  bankrupt  had  constituted  the  defendant  his  attorney  to  pay  the 
former's  wife  an  annual  sum.  The  defendant  accepted  the  mandate, 
and  became  a  surety  for  the  payments  as  provided  in  the  power  of  at- 
torney. Later,  the  defendant  received  his  discharge  in  bankruptcy.  Held, 
that  the  claim  of  the  wife  was  not  fiduciary,  and  that  the  obligation  was 
released  by  the  discharge.    Ibid. 

A  fiduciary  creditor  who  proves  his  debts  and  participates  in  the  divi- 
dends cannot  prosecute  any  other  remedy.  In  re  Tebbetts,  5  Law  Rep. 
259;  23  Fed.  Cas.  826  (1842). 

A  fiduciary  creditor  may  at  his  election  prove  his  claim  in  bankruptcy 
and  share  in  the  dividends.  If  he  does  not  elect  to  do  so,  his  debt  is  not 
affected  by  the  discharge.  In  re  Brown,  5  Law  Rep.  258;  4  Fed.  Cas.  333 
(1842). 

Where  certain  produce  had  been  sent  to  the  bankrupt  to  be  sold  on 
commission,  and  he  had  sold  it,  but  failed  to  remit  the  proceeds,  and  was 


154  The  Bankhuptcy  Law. 

afterward  arrested  by  process  from  a  state  court  in  an  action  to  recover 
tlie  proceeds,  Justice  Nelson  held  that  the  debt  was  one  created  by  the 
defalcation  of  the  bankrupt  "  while  acting  in  a  fiduciary  character  "  under 
section  33  of  the  Act  of  1867,  and  that  he  was,  therefore,  subject  to 
arrest.    In  re  Kimball,  6  Blatchf.  29&;  14  Fed.  Gas.  478. 

The  defendants  had  received  certain  United  States  bonds  and  had 
signed  an  agreement  to  the  following  effect:  "  These  bonds  were  held 
subject  to  the  order  for  A.  L.  P.  at  ten  days'  notice,  agreeing  to  collect 
the  coupons  for  his  account  free  of  charge  and  to  allow  him  two  per 
cent,  per  annum  interest  on  the  par  value  of  said  bonds,"  etc.  The  de- 
fendants sold  the  bonds  and  failed  to  account  for  the  proceeds.  The 
supreme  court  thought  there  was  no^  such  fraud  In  the  creation  of  the 
debt  and  no  such  trust  in  respect  to  the  possession  of  the  bonds  as  to  bar 
the  operation  of  a  discharge  in  bankruptcy.  Palmer  v.  Hussey,  119 
U.  S.  96. 

A  creditor  proving  a  fiduciary  debt  and  receiving  a  dividend  cannot 
thereafter  claim  that  his  debt  was  not  barred  by  a  discharge.  Chap- 
man V.  Forsyth,  2  How.  202. 

A  bankrupt  owing  a  fiduciary  debt  must  state  its  nature  in  the  sched- 
ules.   If  he  fails  to  do  so,  his  discharge  will  not  operate  as  a  bar.    Ibid. 

Judge  Choate,  of  the  district  court  for  the  southern  district  of  New  York, 
decided  that  the  case  of  Neal  v.  Clark,  95  TJ.  S.  704,  settled  the  proposi- 
tion that  a  factor's  liability  is  covered  by  a  discharge  in  bankruptcy.  In 
re  Smith  et  al.,  9  Ben.  494;  22  Fed.  Cas.  388. 

Section  33  of  the  Act  of  1867  provides  that  "  No  debt  created  by  the 
fraud  or  embezzlement  of  the  bankrupt  *  *  *  qj.  -n-hile  acting  in  any 
fiduciary  character  shall  be  discharged  by  proceedings  in  bankruptcy." 
This  was  held  not  to  cover  the  case  of  a  commission  merchant  who  re- 
ceived goods  on  consignment  and  failed  to  account  for  the  proceeds  to 
the  consignee.    Keime  v.  Graff  et  al.,  17  N.  B.  R.  319;  14  Fed.  Cas.  218. 

Held,  under  the  Act  of  1.841,  that  the  debt  of  an  auctioneer  for  goods 
sold  by  him  is  of  a  fiduciary  character,  and  Is  not  released  by  a  dis- 
charge in  bankruptcy.  In  re  Lord,  5  Law  Rep.  258;  15  Fed.  Cas.  872 
(1842). 

The  relation  between  a  factor  and  his  principal  was  held  not  to  be 
fiduciary  within  the  terms  of  the  Act  of  1800.  Chapman  v.  Forsyth,  2 
How.  202. 

A  debt  against  a  commission  merchant  for  the  proceeds  of  goods 
sold  on  commission  is  not  fiduciary  in  its  character,  so  as  to  be  ex- 
cepted from  the  benefit  of  a  discharge  in  bankruptcy.  Owsley  v.  Cobin, 
15  N.  B.  I^.  489;  18  Fed.  Cas.  929. 

A  commission  merchant  who  fails,  on  account  of  insolvency,  to  pay  for 
the  goods  consigned  to  and  sold  by  him  was  held  to  be  released  of  his 
indebtedness  by  a  discharge  in  bankruptcy.  Zeprink  v.  Card  11  Fed. 
Rep.  295. 

Effect  of  Discharge  Generally. 

Under  the  Act  of  1800  a  discharge  in  bankruptry  was  held  not  to  be  a 
bar  to   an   injury   to   goods   shipped,    caused   by   negligence,    where   the 


Bankrupts.  155 

damages  were  not  liquidated.    Duser  v.  Murgatroyd,  1  Wash.  C.  C.  13; 
8  Fed.  Cas.  140  (1803). 

A  discharge  granted  abroad  does  not  release  the  person  or  property 
of  the  debtor  from  proceedings  commenced  here  for  the  collection  of 
debts.    Zaregas'  Case,  4  Law  Rep.  480;  30  Fed.  Cas.  916  (1842). 

Justice  Washington  decided  that  a  debt  contracted  in  this  country 
could  not  be  discharged  by  the  bankrupt  laws  of  another  country.  Green 
V.  Sarminto,  Pet.  C.  C.  74;  10  Fed.  Cas.  1117. 

A  shareholder  in  a  national  bank  is  released  from  his  individual 
liability  to  the  bank's  creditors  by  his  discharge,  provided  such  liability 
was  provable  in  bankruptcy,  and  not  merely  contingent.  Irons  v.  Bank, 
27  Fed.  Rep.  591. 

Under  the  Act  of  1800,  a  discharge  of  the  party,  made  after  the  return 
of  a  scire  facias  against  his  bail,  did  not  operate  to  discharge  the  sure- 
ties.   Bennett  et  al.  v.  Alexander,  1  Oranch    O.  O.  90;  3  Fed.  Cas.  203. 

A  discharge  in  bankruptcy  only  releases  the  debtor  personally  from  his 
debts.  A  lien  is  not  discharged,  and  may  be  enforced  by  a  state  court 
when  the  property  was  not  assets  in  bankruptcy,  or  by  the  bankrupt 
court  when  it  was,  and  subsequently  comes  into  the  possession  of  the 
bankrupt.    Dixon  v.  Barnum,  3  Hughes,  207;  7  Fed.  Cas.  748. 

A  replication  to  a  plea  of  discharge  in  bankruptcy  must  set  forth  that 
the  debt  sued  for  was  placed  on  the  schedule.  Hood  v.  Spencer  et  al., 
4  McLean,  168;  12  Fed.  Cas.  459. 

Held,  that  a  discharge  in  bankruptcy  may  be  set  up  in  a  state  court 
to  stay  an  execution  on  a  judgment  recovered  against  the  bankrupt 
after  the  commencement  of  proceedings  and  before  the  discharge,  not- 
withstanding the  defendant  had  failed  to  apply  for  the  stay  before  judg- 
ment.   Boynton  v.  Ball,  121  V.  S.  457. 

An  action  was  commenced  against  a  special  partner  on  an  allegation 
that  he  had  made  himself  liable  as  a  general  partner.  Held,  that  the 
action  was  not  barred  by  the  discharge  of  the  general  partners  in  bank- 
ruptcy.   Abendroth  v.  Van  Dolsen,  131  V.  S.  66. 

Real  estate  of  the  bankrupt  set  apart  as  a  homestead  was  held  not 
to  be  released  by  a  discharge  in  bankruptcy  from  the  lien  of  a  mortgage 
executed  by  him  before  the  commencement  of  proceedings  to  secure  a 
debt  not  proved  in  bankruptcy.    Long  v.  Bullard,  117  U.  S.  617. 

A  suit  had  been  commenced  before  the  commencement  of  proceedings 
in  bankruptcy,  and  was  pending  when  the  discharge  was  granted.  There- 
after a  judgment  was  entered.  The  debt  was  one  provable  in  bankruptcy. 
It  was  held  that  the  discharge  was  no  bar  to  an  action  on  the  judgment. 
Dimock  v.  Revere  Copper  Co.,  117  XJ.  S.  559. 

A  discharge  in  bankruptcy  is  personal  to  the  bankrupt,  and  cannot  be 
pleaded  by  other  persons  in  bar  to  an  action  against  them.  Moyer  v. 
Dewey,  103  U.  S.  301. 

A  discharge  in  bankruptcy  releases  the  obligation  of  the  principal  on  an 
attachment  bond,  but  not  his  surety.    Wolf  v.  Stix,  99  U.  S.  1. 

The  Act  of  1841  authorized  the  surety  of  a  promissory  note  to  prove  the- 
demand  against  the  maker  in  bankruptcy.    Accordingly  the  claim  of  such 


156  The  Bankruptcy  Law. 

a  surety  against  his  principal  is  barred  by  a  discharge.     Mace  v.  Wells, 

7  How.  272. 

The  principal  obligor  of  a  delivery  bond  executed  after  the  commence- 
ment of  proceedings  was  not  released  by  a  discharge.     Wolf  v.  Stix,  99 

V.  S.  1. 

In  Massachusetts  the  original  cause  of  action  is  merged  in  the  judg- 
ment, and  suit  on  the  judgment  will  be  barred  by  the  discharge,  although 
the  original  cause  of  action  would  not  have  been  barred  thereby.  Packer 
V.  Whlttier,  81  Fed.  Eep.  335. 

An  estoppel  based  on  covenants  of  warranty  is  not  impaired  by  the 
discharge  of  the  covenantors  in  bankruptcy.    Bush  v.  Cooper,  18  How.  82. 

Held,  that  a  discharge  in  bankruptcy  releases  a  debt  for  a  fine  imposed 
in  proceedings  for  contempt  and  exonerates  the  bankrupt  from  im- 
prisonment.    Spaulding  v.  New  York,  4  How.  21. 

A  debt  which  is  excepted  from  the  operation  of  a  discharge  can  be 
collected  notwithstanding  the  discharge.  The  question  whether  the  dis- 
charge affects  such  debt  can  only  arise  and  be  determined  between  the 
parties  in  a  suit  brought  to  collect  the  debt,  in  which  the  discharge,  after 
it  shall  have  been  granted,  shall  be  set  up  as  a  bar  to  a  recovery.  In  re 
Ti^'right,  2  Ben.  509;  3  N.  B.  R.  142;  30  Fed.  Cas.  656  (1868). 

The  contingent  liability  of  the  bankrupt  as  a  stockholder  in  a  corpora- 
tion was  held  not  to  be  discharged  by  composition  proceedings,  when  the 
bankrupt  had  not  included  it  in  his  schedule  of  debts.  Flower  v.  Green- 
baum,  2  Fed.  Eep.  897. 

A  discharged  bankrupt  was  sued  on  a  note,  and  set  up  in  answer  his 
discharge  in  bankruptcy.  The  replication  alleged  that  the  plaintiff's  name 
was  not  placed  on  the  schedule,  and  he  had  received  no  notice  of  the 
proceedings,  or  the  application  for  a  discharge.  A  demurrer  to- the  repli- 
cation was  sustained.    Lamb  v.  Brown,  12  N,  B.  R.  552;  14  Fed.  Cas.  988. 

The  Act  of  1841  released  the  bankrupt  from  all  debts  that  might  have 
been  proved,  whether  they  were  actually  proved  or  not.  Case  of  Johnson, 
13  Fed.  Cas.  718  (1812). 

A  discharge  in  bankruptcy  releases  the  bankrupt  from  a  judgment  ob- 
tained in  an  action  for  a  tort.  In  re  Book,  3  McLean,  317;  3  Fed.  Cas.  867 
a843). 

The  court  decided  that  a  discharge  in  bankruptcy  does  not  release  the 
bankrupt  from  an  obligation  to  pay  alimony,  and  discussed  without 
deciding  the  question  whether  installments  already  due  are  released.  In 
re  Garrett,  2  Hughes,  235;  10  Fed.  Cas.  47. 

Held,  under  the  Act  of  1867,  that  a  judgment  obtained  in  an  action  for 
breach  of  promise  to  marry  may  be  proved  in  bankruptcy,  and  is  barred 
by  a  discharge.    In  re  Sidle,  2  N.  B.  R.  220;  22  Fed.  Cas.  102. 

It  was  held  under  the  laws  of  Louisiana  that  the  liability  of  a  husband 
to  his  wife  for  her  paraphernal  property  secured  by  a  mortgage  on  his 
estate  is  extinguished  by  his  discharge  in  bankruptcy;  that  the  mortgage 
could  not  attach  to  land  acquired  by  him  after  the  discharge,  and  that  a 
subsequent  mortgagee  of  the  husband  might  set  up  the  discharge  in 
bankruptcy  against  the  wife.    Fleltas  v.  Richardson,  147  U.  S.  550. 


CouETS  AND  Pkoceduke  Thebein'.  157 


CHAPTEE  IV. 

COTJETS    AND    PeOOEDUEE    ThEEEIN. 

§  18.  Process,  Pleadings,  and  Adjudications. —  (a.)  Upion  the 
filing  of  a  ptitition  for  involuntary  bankruptcy,  seryice  thereof,  with 
a  Avrit  of  subpoena,  shall  be  made  upon  the  person  therein  named  as 
defendant  in  the  same  manner  that  service  of  such  process  is  now  had 
upon  the  commencement  of  a  suit  in  equity  in  the  courts  of  the 
United  States,  except  that  it  shall  be  returnable  within  fifteen  days, 
unless  the  judge  shall  for  cause  fix  a  longer  time;  but  in  case  personal 
service  cannot  be  made,  then  notice  shall  be  given  by  publication  in 
the  same  manner  and  for  the  same  time  as  provided  by  law  for  notice 
by  publication  in  suits  in  equity  in  courts  of  the  United  States. 

(b.)  The  bankrupt,  or  any  creditor,  may  appear  and  plead  to  the 
petition  within  ten  days  after  the  return  day,  or  within  such  further 
time  as  the  court  may  allow. 

(c.)  All  pleadings  setting  up  matters  of  fact  shall  be  verified  under 
oath. 

(d.)  If  the  bankrupt,  or  any  of  his  creditors,  shall  appear,  within 
the  time  limited,  and  controvert  the  facts  alleged  in  the  petition,  the 
judge  shall  determine,  as  soon  as  may  be,  the  issues  presented  by  the 
pleadings,  without  the  intervention  of  a  jury,  except  in  cases  where 
a  jury  trial  is  given  by  this  Act,  and  makes  the  adjudication  or  dismiss 
the  petition. 

(e.)  If  on  the  last  day  within  which  pleadings  may  be  filed  none  are 
filed  by  the  bankrupt  or  any  of  his  creditors,  the  judge  shall  on  the 
next  day,  if  present,  or  as  soon  thereafter  as  practicable,  make  the 
adjudication  or  dismiss  the  petition. 

(f.)  If  the  judge  is  absent  from  the  district,  or  the  division  of  the 
district  in  which  the  petition  is  pending,  on  the  next  day  after  the  last 
day  on  which  pleadings  may  be  filed,  and  none  have  been  filed  by  the 
bankrupt  or  any  of  his  creditors,  the  clerk  shall  forthwith  refer  the 
case  to  the  referee. 

(g.)  Upon  the  filing  of  a  voluntary  petition  the  judge  shall  hear 
the  petition  and  make  the  adjudication  or  dismiss  the  petition.  If 
the  judge  is  absent  from  the  district,  or  the  division  of  the  district  in 
which  the  petition  is  filed  at  the  time  of  the  filing,  the  clerk  shall  forth- 
with refer  the  case  to  the  referee. 


158  The  Bankkuptot  Law. 

Pleading^s  and  Amendments  —  Verification. 

The  rules  of  the  court  in  which  the  proceedings  are  pending  will  govern 
the  sufficiency  of  pleadings.  In  re  Sutherland,  Deady,  344;  23i  Fed.  Cas. 
454. 

A  petition  in  involuntary  bankruptcy  was  held  to  be  insufficient  which 
alleged  that  the  debtor  owed  a  debt,  but  failed  to  allege  that  it  was  due 
to  the  petitioning  creditor.  In  re  Western  Savings  &  T.  Co.,  4  Saw.  190; 
29  Fed.  Cas.  775. 

The  proof  on  an  order  to  show  cause  why  a  debtor  should  not  be  ad- 
judged a  bankrupt  will  be  confined  to  the  alleged  acts  of  bankruptcy  set 
forth  in  the  petition.    In  re  Sykes,  5  Biss.  113;  23  Fed.  Cas.  582. 

An  allegation  in  a  petition  to  have  a  debtor  adjudged  a  bankrupt,  signed 
by  one  of  a  firm  of  creditors  "  this  deponent  Is  informed  and  believes  " 
(then  reciting  the  act  of  bankruptcy),  is  an  Insufficient  averment  by  the 
petitioning  firm  and  subject  to  demurrer.  In  re  Orem  et  al.  v.  Harley,  3 
N.  B.  R.  263;  18  Fed.  Cas.  790  (1869). 

The  allegation  of  acts  of  bankruptcy,  or  depositions  in  support  thereof, 
must  be  such  as  constitutes  legal  testimony,  or  the  court  cannot  assume 
jurisdiction.    In  re  Rosenflelds,  11  N.  B.  R.  86;  20  Fed.  Cas.  1200. 

It  is  not  necessary  that  the  petitioner  in  a  bankruptcy  proceeding 
should  have  personal  knowledge  of  the  acts  of  bankruptcy  alleged  in  his 
petition;  but  the  grounds  of  his  belief  should  be  stated.  In  re  MuUer  et 
al.,  Deady,  513;  17  Fed.  Cas.  971. 

Where  neither  the  petition  nor  the  affidavit  to  the  acts  of  bankruptcy 
is  signed  by  the  petitioner,  the  case  will  be  dismissed.  Hunt  et  al.  v. 
Pooke  et  al.,  5  N.  B.  R.  101;  12  Fed.  Cas.  930. 

A  petition  was  held  to  be  sufficient  under  the  Act  of  1867  which  set  up 
that  the  acts  of  bankruptcy  were  committed  "  within  six  calendar  months 
next  preceding  the  date  thereof."  In  re  Muller  et  al.,  Deady,  513;  17  Fed. 
Cas.  971. 

A  rule  of  the  court  requiring  the  petitioning  creditor  to  state  the  con- 
sideration for  his  debt  need  not  be  complied  with  when  the  debt  is  In 
judgment.    In  re  Mott,  17  Fed.  Cas.  90S. 

A  petitioner  in  voluntary  bankruptcy  was  a  member  of  several  firms, 
and  failed  to  state  that  they  were  insolvent,  or  that  they  had  been  dis- 
solved. It  was  held  that  the  omissions  were  not  fatal.  In  re  Dodge  7 
Fed.  Cas.  785  (1842). 

A  court  of  bankruptcy  will  allow  supplemental  proofs  to  be  filed  to  cor- 
rect omissions  in  the  petition  or  depositions.  In  re  Hanlbel  et  al  15  N 
B.  R.  233;  11  Fed.  Cas.  431. 

Allegations  of  acts  of  bankruptcy  must  not  be  In  the  alternative.    Ibid. 

The  petitioning  creditor  was  a  bank,  and  the  petition  was  signed  by  its 
cashier.  The  alleged  bankrupt  moved  to  vacate  the  order  to  show  cause 
on  the  ground  that  the  signature  was  not  sufficient,  and  also  denied  the 
act  of  bankruptcy  set  up  in  the  petition,  and  demanded  a  trial.    It  was 


Courts  and  Peocedukb  Thekeik.  159 

held  that  in  joining  issue  he  waived  his  objection  to  the  petition.  In  re 
McNaughton,  8  N.  B.  R.  44;  16  Fed.  Oas.  333. 

Erasures  and  interlineations  that  did  not  affect  the  sense  of  the  docu- 
ment were  held 'not  to  be  fatal  to  a  petition  in  bankruptcy.  In  re  Mal- 
colm, 4  Law  Rep.  488;  16  Fed.  Gas.  540  (1842). 

On  the  hearing,  the  petitioning  creditors  will  only  be  allowed  to  give 
proof  of  acts  of  bankruptcy  specifically  set  forth.  Ex  parte  Potts  et  al., 
Ci-abbe,  469;  19  Fed.  Gas.  1199  (1842). 

It  was  not  necessary  that  a  petition  in  involuntary  bankruptcy  should 
be  signed  by  the  petitioner  himself.  It  may  be  signed  and  verified  by  his 
attorney  duly  authorized.  So  held  under  the  Act  of  1867.  In  re  Raynor, 
11  Blatchf.  43;  20  Fed.  Gas.  338. 

Where  a  petitioner  in  bankruptcy  does  not  know  the  residences  of 
creditors,  he  should  set  out  what  effoi-ts  he  has  made  to  find  them.  In  re 
Pulver,  1  Ben.  381;  20  Fed.  Cas.  54. 

Allegations  of  acts  of  bankruptcy  should  be  so  specific  as  to  Inform  the 
creditor  fully  what  he  is  required  to  refute  and  explain.  In  re  Randall 
et  al.,  Deady,  557;  20  Fed.  Oas.  222. 

A  petition  in  involuntary  bankruptcy  is  not  merely  an  action  to  collect 
a  debt.  A  plea  tendering  the  amount  of  the  debt  is  immaterial,  and  is 
bad.  If,  as  charged,  the  debtor  is  insolvent,  the  petitioner  has  no  right 
to  accept  payment,  and  would  thereby  take  the  risk  of  forfeiting  his 
whole  debt.    In  re  Ouimette,  3  N.  B.  R.  566;  18  Fed.  Cas.  913  (1870). 

A  plea  in  abatement  was  held  to  be  not  the  proper  form  of  opposing 
a  petition  in  bankruptcy.  When  one  is  filed,  it  should  be  treated  as 
written  objections.    In  re  Book,  3  McLean,  307;  3  Fed.  Cas.  1843. 

It  was  not  necessary  that  the  answer  to  a  creditor's  petition  under  the 
Act  of  1867  should  be  verified  or  that  it  should  be  in  writing.  It  is 
sufficient  if  the  opposing  party  appears  and  denies  the  facts  set  forth  in 
the  petition.  At  the  same  time  the  court  expressed  the  opinion  that  it  is 
better  in  all  such  cases  that  the  answer  should  not  only  be  in  writing, 
but  should  be  as  full,  specific,  and  certain  as  an  answer  to  a  bill  in  equity. 
In  re  Heydett,  8  N.  B.  R.  332;  12  Fed.  Cas.  86. 

A  demurrer  to  a  petition  in  bankruptcy  having  been  overruled  without 
prejudice  to  an  application  for  leave  to  answer,  and  the  application  hav- 
ing been  promptly  made,  the  circuit  court  held  that  the  district  court 
should  have  permitted  the  answer  to  be  filed.  In  re  Morse,  17  Blatchf. 
72;  17  Fed.  Cas.  846. 

Where  the  allegations  of  a  petition  In  involuntary  bankruptcy  are  de- 
nied according  to  form  61  under  the  Act  of  1867,  no  replication  was  held 
to  be  necessary.    In  re  Dunham  et  al.,  2  Ben.  488;  8  Fed.  Gas.  33. 

The  answer  of  a  debtor  to  an  involuntary  petition  under  the  Act  of 
1867  was  required  to  be  in  writing  and  verified.  The  averments  should 
be  made  in  substantially  the  same  form  as  defenses  in  a  common-law 
action.    In  re  Findlay,  5  Biss.  480;  9  Fed.  Gas.  55. 

Justice  Miller  expressed  the  opinion  that  a  paper  simply  denying  the 
allegations  of  acts  of  bankruptcy,   and  demanding  a  trial  by  jury,   is 


160  The  Bankeuptct  Law. 

sufficient  without  a  formal  answer  to  a  petition  in  involuntary   bank- 
ruptcy.   Phelps  V.  Glasen,  Woolw.  204;  19  Fed.  Gas.  445. 

Where  an  attorney  yerifles  a  petition  or  proof  in  bankruptcy,  he  must 
show  his  authority  for  making  such  verification.  In  re  Sargent,  13  N,  B. 
R.  144;  21  Fed.  Gas.  495  (1875). 

Any  irregularity  in  verifying  a  petition,  or  the  debts  of  the  petitioning 
creditor,  may  be  amended  mine  pro  tunc,  and  does  not  defeat  the  juris- 
diction of  the  court.     In  re  Donnelly,  5  Fed.  Rep.  783. 

A  petition  that  is  defective  in  its  verification  nevertheless  gives  the 
court  jurisdiction  to  allow  an  amendment.  In  re  Simmons,  10  N.  B.  R. 
253;  22  Fed.  Gas.  152. 

Where  there  were  several  petitioners  in  distinct  rights,  it  was  held  that 
a  verification  by  or  on  behalf  of  each  was  necessary.    Ibid. 

Held,  under  the  Act  of  1867,  that  it  is  not  necessary  for  an  agent  who 
verifies  a  petition  in  bankruptcy  to  state  the  residence  of  his  principals. 
Ibid. 

The  attorney  of  the  bankrupt,  as  notary  public,  may  take  the  affidavit 
of  the  bankrupt  to  his  petition  and  schedule.  In  re  Mauer,  5  Saw.  66; 
16  Fed.  Gas.  1162. 

The  authority  of  an  agent  to  verify  a  petition  in  bankruptcy  must  be 
shown  by  the  agent's  own  oath,  or  by  supplementary  proof,  in  the  dis- 
cretion of  the  court.    In  re  Rosenfields,  11  N.  B.  R.  86;  20  Fed.  Gas.  1209. 

When  a  petition  in  bankruptcy  is  verified  by  an  attorney,  the  absence 
of  the  principal  should  appear  by  direct  averment,  and  not  as  a  recital. 
In  re  Hadley,  12  N.  B.  R.  366;  11  Fed.  Gas.  148. 

The  authority  of  an  agent  to  verify  a  petition  by  a  corporation  must 
appear  by  direct  affirmation,  and  not  by  way  of  recital.  In  re  Hanibel  et 
al.,  15  N.  B.  R.  233;  11  Fed.  Giis.  431. 

A  defective  verification  is  deemed  waived  by  the  debtor  when  he  calls 
a  meeting  for  a  composition,  and  it  cannot  be  taken  advantage  of  by 
objecting  creditors.    Ex  parte  Jewett,  2  Low.  393;  13  Fed.  Gas.  580. 

A  petition  was  amended  so  as  to  set  up  that  the  conveyances  specifically 
set  forth  in  the  original  petition,  and  there  alleged  to  be  fraudulent  and 
without  consideration,  were  made  with  intent  to  prefer  a  certain  person. 
It  was  held  that  this  did  not  charge  a  new  act  of  bankruptcy,  and  should 
be  allowed.    In  re  Henderson,  9  Fed.  Rep.  196. 

An  Involuntary  petition  was  filed  against  two  persons  as  partners,  and 
subsequently  amended  to  include  a  dormant  partner.  Held,  that  the 
filing  of  the  amended  petition  was  the  commencement  of  the  proceedings 
as  to  the  dormant  partner.     In  re  Ward,  12  Fed.  Rep.  325. 

An  affidavit  to  a  petition  in  bankruptcy,  defective  in  form,  may,  on 
motion,  be  amended  to  conform  to  law.  In  re  Sargent,  13  N,.  B.  R.  144; 
21  Fed.  Gas.  4§5  (1875). 

Greditors  having  joined  in  a  petition  cannot  object  to  amendments 
which  appear  necessary  to  the  prosecution  of  same  to  effect.    Ibid. 


Courts  and  Pkoceduke  Therein'.  161 

Where  a  petition  by  one  partner  against  another  omitted  the  residence 
of  the  latter,  the  court  allowed  the  omission  to  be  corrected  by  amend- 
ment.   In  re  Vandei-hoef  et  al.,  18  N.  B.  K.  543;  28  Fed.  Oas.  966. 

Petitioning  credltoi-s  are  not  entitled  to  amend  so  as  to  allege  a  new- 
act  of  bankruptcy.    Stern  v.  Schonfield,  22  Fed.  Gas.  1310. 

Between  the  filing  of  the  petition  and  the  filing  of  an  amendment,  the 
petitioning  creditor  had  assigned  his  claim.  The  amended  petition  was. 
dismissed.    In  re  Western  Savings  &  T.  Co.,  4  Saw.  190;  29  Fed.  Oas.  775. 

When  a  legal  petition  in  banljruptcy  has  been  filed,  amendments  sub- 
sequently allowed,  as  a  general  rule,  relate  back  and  take  effect  from  the 
time  that  the  original  petition  was  filed.  Securities  transferred  by  the 
bankrupt  before  the  amendment  is  made,  but  after  the  filing  of  the 
original  petition,  vest  in  the  assignee,  and  are  recoverable  by  him,  al- 
though the  adjudication  was  based  exclusively  on  the  facts  stated  in  the 
amendment.     Sherman  v.  Bank,  8  Biss.  371;  21  Fed.  Gas.  1276i 

When,  after  a  sufficient  petition  is  filed,  an  amendatory  act  is  passed 
making  additional  or  different  requirements,  the  new  law  applies,  but  the 
petitioners  will  be  allowed  to  amend  their  pleading  so  as  to  conform  to  it. 
In  re  Scull,  7  Ben.  371;  10  N.  B.  R.  165;  21  Fed.  Gas.  890  (1874). 

A  deposition  to  acts  of  bankruptcy  cannot  be  amended,  since  it  is  the 
proof  upon  which  the  rule  to  show  cause  why  the  debtor  should  not  be 
declared  a  bankrupt  issues.  May  v.  Harper  et  al.,  4  N.  B.  R.  478;  16  Fed. 
Oas.  12ia 

During  a  trial  before  a  Jury  on  the  issue  of  bankruptcy,  the  court  may 
allow  the  petition  to  be  amended.  In  re  Bininger  et  al.,  7  Blatchf.  262; 
3  Fed.  Oas.  412. 

The  petition  failed  to  allege  that  the  act  complained  of  was  done  when 
the  alleged  bankrupt  was  insolvent,  but  it  appeared  in  evidence  during 
the  proceeding  that  suCh  was  the  fact.  The  court  allowed  the  petition 
to  be  amended,  and  proceeded  with  an  adjudication.  In  re  Graft,  2  Ben. 
214;  6  Fed.  Oas.  698. 

The  court  will  permit  a  petitioning  creditor  to  amend  his  petition  by 
setting  up  further  acts  of  bankruptcy  that  were  disclosed  in  the  proof. 
In  re  Gallinger,  1  Saw.  224;  9  Fed.  Oas.  1108. 

After  the  debtor  in  involuntary  proceedings  had  appeared,  answered, 
and  demanded  a  jury,  and  within  a  few  days  before  the  time  fixed  for  the 
trial,  the  petitioners  asked  leave  to  file  an  amended  petition  alleging 
additional  acts  of  bankruptcy,  without  notice  to  the  debtor  or  his  attorney. 
Leave  was  refused.    In  re  Leonard,  4  N.  B.  R.  562;  15  Fed.  Oas.  331. 

The  duty  of  a  court  of  bankruptcy  is  not  limited  to  .the  efforts  of 
counsel,  but  should  go  beyond  them  to  carry  out  the  policy  of  the  Act 
and  see  that  justice  is  done  to  all  parties.  For  this  purpose,  amendments 
may  be  allowed  to  the  time  of  the  final  discharge.  In  re  Plerson,  10  N. 
B.  R,  193;  19  Fed.  Gas.  668. 

The  district  court  will  not  allow  an  amendment  setting  up  entirely  new 
acts  of  bankruptcy.  Reed  et  al.  v.  Cowley,  1  N.  B.  R.  516;  20  Fed.  Oas. 
433. 

11 


162  The  Bankeuptcy  Law. 

Who  May  Oppose  Adjudication. 

A  general  unsecured  creditor  has  a  right  to  appear  and  oppose  an 
adjudication  in  bankruptcy.  In  re  Austin  et  al.,  16  N.  B.  B.  518;  2  Fed. 
Cas.  23. 

Oi-editors  at  large  having  no  special  interest  to  protect  cannot  inter- 
vene and  oppose  an  adjudication  of  bankruptcy;  but  upon  their  sugges- 
tion the  court  may  order  an  investigation  into  suspicious  circumstances. 
In  re  Hopkins,  18  N.  B.  R.  490;  12  Fed.  Cas.  491. 

An  attaching  creditor  can  avail  himself  of  any  ground  of  opposition  to 
an  adjudication  which  would  be  open  to  the  debtor  himself.  In  re 
Williams,  2  N.  B.  R.  132;  29  Fed.  Gas.  1327. 

An  attaching  creditor  has  the  right  to  intervene  in  bankruptcy  pro- 
ceedings and  contest  the  jurisdictional  allegation  of  the  petitioner  as  to  the 
number  and  amount  of  petitioners,  and  also  to  contest  the  case  on  its 
merits.    In  re  Williams,  14  N.  B.  R.  132;  29  Fed.  Cas.  1327. 

Where  there  is  reason  to  believe  that  proceedings  in  voluntary  bank- 
ruptcy are  collusive  between  the  petitioner  and  the  debtor,  an  attaching 
creditor  may  intervene  to  oppose  the  adjudication.  In  re  Mendelsohn,  3 
Saw.  342;  17  Fed.  Gas.  4. 

An  insurance  company  was  in  the  hands  of  "a  receiver  appointed  by  a 
state  court,  when  it  was  adjudged  bankrupt.  The  receiver  was  held  to  be 
competent  to  move  the  district  court  to  set  aside  the  proceedings  in  bank- 
ruptcy, but  was  not  allowed  to  prove  that  the  company  was  not  Insolvent. 
In  re  Atlantic  M.  L.  I.  Co.,  9  Ben.  270;  2  Fed.  Cas.  168. 

A  creditor,  who  had  a  suit  pending  when  the  proceedings  were  com- 
menced, attached  the  bankrupt's  property  and  pressed  his  suit  to  judg- 
ment. Thereafter  he  asked  leave  to  intervene  and  oppose  the  adjudica- 
tion. The  court  denied  the  application  on  the  ground  that  he  had  no 
more  rights  than  a  general  creditor.  In  re  Vogel  et  al.,  9  Ben.  498;  28 
Fed.  Cas.  1238. 

Creditors  can  only  resist  voluntary  proceedings  on  the  ground  of  a 
want  of  jurisdiction  in  the  court,  or  some  defect  in  the  proceedings.  In 
re  Fowler,  1  Low.  161;  9  Fed.  Cas.  614. 

In  Involuntary  proceedings  under  the  Act  of  1841,  the  bankrupt  did  not 
appear,  but  certain  creditors,  alleged  to  have  been  fraudulently  preferred, 
appeared  and  denied  that  the  petitioner  had  any  claims  against  the 
alleged  bankrupt.  It  was  held  that  they  had  a  right  to  contest  the  facts 
set  up  in  the  petition;  also  that  the  alleged  bankrupt  could  be  subjected 
to  an  examination  in  relation  to  the  consideration  of  the  debt  claimed  to 
be  due  from  him  to  the  petitioning  creditor.  In  re  Heusted,  5  Law  Rep. 
510;  12  Fed.  Cas.  71  (1843). 

The  failure  of  the  alleged  bankrupt  to  appear  on  the  return  day  does 
not  prevent  any  creditor  directly  Interested  in  the  proceedings  from 
intervening  and  contesting  the  allegations  of  acts  of  bankruptcy.  In  re 
Jonas,  16  N.  B.  R.  452;  13  Fed.  Cas.  923. 

A  creditor  who  has  a  lien  on  the  property  of  the  bankrupt  by  virtue  of  a 


Courts  xnd  Pbocedube  Therein.  163 

Judgment,  which  he  was  subsequently  enjoined  from  prosecuting  by 
proceedings  in  bankruptcy,  has  no  right  to  contest  the  facts  set  up  by 
another  creditor  in  a  petition  filed  subsequent  to  the  judgment  to  have 
the  debtor  adjudged  a  bankrupt.  Button  et  al.  v.  Freeman,  5  Law  Rep. 
447;  8  Fed.  Cas.  175  (1842). 

Until  an  adjudicatiou  is  had,  the  petitioning  creditor  and  the  debtor 
are  the  only  parties  to  a  proceeding  in  bankruptcy.  In  re  Bush,  6  N.  B. 
R.  179;  4  Fed.  Cas.  879. 

Judge  Blatchford  decided  that  the  only  parties  to  proceedings  in  bank- 
ruptcy are  the  bankrupt  and  his  creditors.  In  re  Fredenberg,  2  Ben.  133; 
9  Fed.  Cas.  740. 

A  person  claiming  to  be  a  creditor  cannot  be  heard  in  opposition  to  a 
petition  for  adjudication,  which  is  simply  an  issue  between  the  petition- 
ing creditors  and  the  alleged  bankrupts.  In  re  Boston  H.  &  E.  B.  Co.,  5 
N.  B.  R.  232;  3  Fed.  Cas.  956. 

Attaching  creditors  have  no  greater  right  to  intervene  in  bankruptcy 
proceedings  than  general  creditors.  In  re  Lawrence  et  al.,  10  Ben.  4;  15 
Fed.  Cas.  21. 

An  adjudication  in  bankruptcy  may  be  opposed  by  an  attaching  creditor, 
not  a  party  to  the  proceedings,  on  the  ground  that  the  required  number 
and  amount  of  creditors  had  not  united  in  the  petitfon.  In  re  Hatje,  6 
Biss.  436;  11  Fed.  Cas.  823. 

A  creditor  cannot  be  heard  either  in  person  or  by  attorney  in  opposition 
to  proceedings  in  bankruptcy  until  he  has  proved  his  debt,  notwithstand- 
ing his  claim  as  set  forth  in  the  schedule  to  the  bankrupt's  petition.  In 
re  Hill,  1  Ben.  321;  12  Fed.  Cas.  144. 

Construing  the  Act  of  1841,  the  court  said:  "The  debt  due  a  bank  is 
due  to  a  corporate  person  absolutely,  and  can  only  be  represented  or 
claimed  by  such  corporation.  There  is  no  authority,  express  or  implied, 
with  the  individual  stockholders,  and  no  power  in  them  to  act  with 
respect  to  such  a  debt  otherwise  than  through  their  corporate  representa- 
tion. Such  individuals  cannot,  accordingly,  be  allowed  to  interpose  and 
contest  a  bankrupt's  proceedings  because  of  that  corporate  debt."  In  re 
Tallmadge,  23  Fed.  Cas.  677  (1843). 

Some  time  after  the  adjudication,  a  brother  of  the  bankrupt  filed  a 
petition  setting  up  that  the  bankrupt  died  before  adjudication,  and  asking 
for  the  dissolution  of  an  injunction  that  it  had  been  served  upon  him, 
the  petitioner.  The  court  decided  that  there  is  no  party  to  a  creditor's 
petition  except  the  petitioning  creditor  and  the  bankrupt;  that  a  person 
against  whom  an  injunction  has  been  issued  might  apply  to  have  the 
injunction  dissolved,  but  did  not  have  a  right  to  contest  the  adjudication. 
The  petition  was  dismissed.  Karr  v.  Whittaker  et  al.,  5  N.  B.  R.  123;  14 
Fed.  Cas.  133. 

Where  a  creditor  had  not  been  served  with  an  order  to  show  cause,  his 
appearance  by  attorney  was  held  to  be  sufflcieut.  In  re  Weyhausen  et  al., 
1  Ben.  39T;  29  Fed.  Cas.  848. 


164  The  Bankkuptoy  Law. 


Practice. 


A  proceeding  In  bankruptcy  is  a  civil,  and  not  a  criminal  proceeding. 
In  re  De  Forest,  9  N.  B.  R.  278;  7  Fed.  Cas.  363. 

The  filing  of  a  petition  in  bankruptcy  gives  notice  to  all  tlie  world  of 
the  commencement  of  proceediags.  In  re  Lake,  3  Blss.  204;  14  Fed.  Oas. 
944. 

A  proceeding  in  bankruptcy,  from  the  filing  of  the  petition  to  the  dis- 
charge of  the  bankrupt  and  the  final  dividend.  Is  a  single  statutory  case 
or  proceeding.  York's  Case,  1  Abb.  (U.  S.)  506;  4  N.  B.  R.  479;  30  Fed. 
Cas.  814  (1870). 

The  filing  of  a  petition  In  bankruptcy  under  the  Act  of  1867  (section 
5024,  R.  S.)  is  deemed  to  be  complete  when  it  is  delivered  to  the  clerk  of 
the  court,  and  not  when  the  clerk  presents  It  to  the  judge.  In  re  Bear  et 
al.,  5  Fed.  Rep.  53. 

The  commencement  of  proceedings  in  bankruptcy  under  section  38  of 
the  Act  of  1867  was  held  not  to  consist  In  the  filing  of  the  petition  alone, 
and  must  date  from  the  filing  of  proofs  sustaining  the  petition  and  mak- 
ing a  prima  facie  case.    In  re  Rogers,  10  N,  B.  R.  444;  20  Fed.  Cas.  1105. 

The  hour  marked  on  the  filing  of  a  petition  In  bankruptcy  is  not  con- 
elusive,  and  parol  testimony  may  be  introduced  to  show  that  It  was  filed 
at  a  later  hour.    In  re  Roberts  et  al.,  8  Biss.  426;  20  Fed.  Cas.  878. 

An  order  to  show  cause  was  made  on  the  15th  of  September,  and  it 
appeared  on  the  face  of  the  papers  that  the  petition  was  not  filed  until  the 
19th.  It  was  ascertained  that  in  fact  the  petition  was  filed  on  the  15th, 
and  the  court  made  an  order  nunc  pro  tunc  correcting  the  entry  of  the 
filing  on  the  petition.  It  was  held  that  this  was  proi)€r  practice,  and 
that  the  amended  record  was  conclusive.  Ala.  &  C.  R.  R.  Co.  v.  Jones, 
7  N.  B.  R.  145;  1  Fed.  Cas.  281. 

A  voluntary  petitioner  becomes  a  bankrupt  from  the  time  that  he  files 
his  petition.  If  he  neglects  to  move  for  an  adjudication,  the  creditors 
may  do  so.  Ex  parte  Harris,  3  N.  Y.  Leg.  Obs.  152;  11  Fed.  Cas.  607 
(1845). 

A  creditor  who  has  not  appeared  on  an  order  to  show  cause  why  an 
adjudication  should  not  be  had.  Is  not  estopped  from  denying  the  alleged 
acts  of  bankruptcy  in  subsequent  proceedings.  In  re  Thomas,  3  N.  B.  R. 
38;  23  Fed.  Cas.  932. 

"  A  tender  after  suit  brought  will  not  bar  the  petition,  unless  the  debt 
Is  the  only  one  outstanding,  or  unless  all  other  creditors  consent,  because 
the  respondents  are  admitted  to  be  insolvent,  and  the  petitioners  would 
have  no  right,  knowing  and  relying  on  the  insolvency,  to  accept  payment 
in  full  without  the  consent  of  all."  In  re  Williams  et  al.,  1  Low.  406;  29 
Fed.  Cas.  1322; 

Pi-oceedings  in  bankruptcy  are,  as  plenary  proceedings,  equivalent  to  a 
general  creditors'  bill  in  chancery.  The  practice,  except  as  otherwise 
prescribed  by  statute,  should  be  the  same  in  both.  In  re  Anderson,  23 
Fed.  Rep.  482. 


COUETS   AND    PROCEDCTRE    THEREIlf.  165 

A  proceeding  by  a  creditor  to  have  a  debtor  adjudged  bankrupt  is  by 
all  analogies  a  case  at  law.  By  it  legal  rights  are  to  be  ascertained  and 
determined,  in  contradistinction  to  equitable  ones,  by  the  intervention  of 
a  jury;  the  pleadings  are  In  nowise  substantially  different  from  those  in 
an  ordinary  action  at  law,  and  the  questions  arising  therein  such  as 
usually  occur  in  an  action  at  law.  Oregon  Bulletin  Printing  Pub.  Co., 
8  Chi.  Leg.  News,  143;  18  Fed.  Cas.  780. 

Section  41  of  the  Act  of  1867  imposed  on  the  debtor  the  burden  of  proof 
to  show  that  the  facts  set  forth  in  the  petition  were  not  true.  In  re 
Price  et  al.,  8  N.  B.  R.  514;  19  Fed.  Cas.  1314. 

When  the  petitioning  creditor  does  not  appear  on  the  day  fixed  for  the 
hearing,  and  no  other  creditor  asks  to  be  substituted,  the  proceedings  are 
at  an  end.    In  re  Camden  P.  M.  Co.,  3  N.  B.  R.  59;  4  Fed.  Cas.  1127. 

An  attorney  for  a  voluntary  bankrupt  must  be  a  member  of  the  bar  of 
the  bankrupt  court.  The  petition  will  not  be  dismissed  because  the  at- 
torney is  not  so  qualified,  but  the  fact  will  be  ground  for  an  order  that 
such  attorney  will  not  be  recognized  by  the  register.  In  re  O'Hallaran,  8 
Ben.  128;  18  Fed.  Cas.  620  (1875). 

A  motion  once  denied,  though  without  prejudice,  cannot  be  heard  again 
on  substantially  the  same  facts.    In  re  Mott  et  al.,  17  Fed.  Cas.  902. 

Previous  to  the  final  judgment  in  bankruptcy  proceedings,  all  orders 
that  affect  the  merits  are  under  the  control  of  the  court.  Linder  v.  Lewis 
et  al.,  4  Fed.  Rep.  318. 

The  Bankrupt  Act  of  1841  was  repealed  on  the  3d  of  March,  1843.  In 
the  case  cited,  the  court  held  that  a  petition  filed  on  that  day  was  too  late, 
as  the  repealing  act  went  into  effect  from  the  beginning  of  the  day,  un- 
less otherwise  provided.  In  re  Welman,  7  Law  Rep.  25;  29  Fed.  Cas.  681 
(1844). 

Where  a  creditor  conceals  property,  the  fact  cannot  be  urged  in  oppo- 
sition to  an  adjudication  on  his  own  petition.  The  concealment  is  itself 
an  act  of  bankruptcy,  and  the  assignee  can  recover  the  property  for  the' 
creditors.    In  re  Fowler,  1  Low.  161;  9'  Fed.  Cas.  614. 

Where  respondents  to  a  rule  appeared  before  the  register  and  defended 
on  the  merits,  but  failed  to  except  to  his  report  upon  which  the  rule  was 
made  absolute,  it  is  too  late  to  object  to  the  order  as  void  for  want  of 
jurisdiction.     In  re  Carrier,  48  Fed.  Bep.  161. 

Judge  Drummond  held  that  mere  irregularities  in  the  proceedings  of 
the  court  of  bankruptcy  did  not  dejfrive  the  court  of  its  jurisdiction  over 
the  bankrupts  and  their  estate,  nor  permit  creditors  to  proceed  against 
them  In  a  state  court.    In  re  Williams  et  al.,  6  Biss.  233;  29  Fed.  C^s.  1318. 

When  the  petitioning  creditors  fail  to  appear  on  the  return  day,  other 
creditors  may  intervene  and  pray  an  adjudication  in  bankruptcy.  In  re 
Sheffer,  4  -Saw.  363;  17  N,  B.  R.  369;  21  Fed.  Cas.  1225. 

While  a  previous  petition  is  pending,  a  second  one,  setting  forth  the 
same  debt  and  the  same  creditors,  will  be  stayed.  In  re  Wielarskl,  4  Ben. 
468;  29  Fed.  Cas.  1154. 

The  creditor,  although  having  the  burden,  is  not  required  to  make  full 
and  complete  proof  of  the  fact  of  insolvency,  since  the  debtor  best  knows 


166  The  Bankeuptct  Law. 

the  condition  of  his  affairs.  In  re  Oregon  Bulletin  Printing  &  Pub.  Oo., 
13  N.  B.  R.  506;  18  Fed.  Oas.  773  (1876). 

Service  may  be  made  upon  a  corporation  by  delivering  a  copy  of  the 
subpoena  to  one  of  its  principal  officers  at  its  principal  place  of  business. 
In  re  California  P.  R.  Co.,  3  Saw.  240;  4  Fed.  Cas.  1061. 

A  railroad  company  was  chartered  in  each  of  four  states.  Proceedings 
in  involuntary  bankruptcy  were  commenced  in  one  of  them,  and  an  order 
to  show  cause  was  served  on  the  general  superintendent  in  another. 
Held,  that  the  service  was  not  sufficient,  the  words  "  if  such  debtor  can- 
not be  found  "  meaning  "  found  in  the  district."  The  service  should  have 
been  by  publication.  Ala.  &  O.  R.  R.  Co.  v.  Jones,  5  N.  B.  B.  97;  1  Fed. 
Cas.  275. 

The  court  denied  an  application  of  an  assignee  in  bankruptcy  for  an 
order  directing  substituted  service  of  a  subpoena,  holding  that  the  man- 
ner of  serving  a  subpoena  is  governed  by  the  acts  of  congress  and  rules 
of  the  supreme  court;  that  if  the  defendants  be  inhabitants  of  the  district 
or  found  therein,  the  subpoena  might  be  served  under  rule  13,  and  that  if 
they  were  not,  there  was  no  power  in  the  court  to  obtain  jurisdiction 
over  their  person.    Hyslop  v.  Hoppock  et  al.,  5  Ben.  533;  12  Fed.  Cas.  1141. 

The  affidavit  of  service  of  the  petition  and  order  to  show  cause  did  not 
state  the  venue;  it  was  verified  before  a  notary  public,  and  did  not  show 
that  the  petition  and  order  were  served  on  the  bankrupt  personally.  In 
the  same  case,  no  order  of  publication  was  made.  The  court  held  there 
was  nothing  jurisdictional  in  these  irregularities;  that  the  debtor  had 
waived  them  by  applying  for  a  discharge,  and  that  his  action  was  binding 
on  all  creditors  whose  debts  were  provable.  In  re  Getchell,  8  Ben.  256; 
10  Fed.  Oas.  268. 

The  burden  of  proof  to  establish  acts  of  bankruptcy  is  on  the  petition- 
ing creditor.    Brock  v.  Hoppock,  2  N.  B.  R.  7;  4  Fed.  Oas.  197. 

A  fraudulent  transfer  by  the  petitioner  under  the  Act  of  1841,  before 
the  passage  of  the  Act,  was  held  not  to  be  a  sufficient  cause  to  prevent 
an  adjudication  of  bankruptcy.  In  re  Houghton,  4  Law  Rep.  482;  12 
Fed.  Cas.  586  (1842). 

Under  section  16  of  the  Act  of  1867,  it  was  held  that  when  the  petitioner 
became  bankrupt  after  filing  a  petition  of  involuntary  bankruptcy  against 
another  person,  his  assignee  could  be  substituted.  In  re  Jones,  7  N.  B.  B. 
506;  13  Fed.  Cas.  935. 

Judge  Ballard,  of  the  district  court  of  Kentucky,  refused  to  answer 
abstract  questions  addressed  to  him  by  the  assignee,  or  questions  that 
had  not  arisen  in  the  course  of  proceedings  before  the  register.  In  re 
Sturgeon,  1  N.  B.  R.  498;  23  Fed.  Oas.  307. 

The  court  refused  to  answer  questions  certified  by  the  register  when 
it  did  not  appear  from  the  certificate  that  they  had  arisen  in  the  course 
of  proceedings  before  him.    In  re  Peck,  3  N.  B.  R.  757;  19  Fed.  Cas.  74. 

Where  the  petition  was  so  delayed  that  certain  transfers  which  have 
been  attacked  could  not  be  attacked  after  the  filing,  the  delay  does  not 
impair  or  invalidate  the  proceedings.  In  re  Duncan  et  al.,  8  Ben.  365;  8 
Fed.  Oas.  1. 


OOUETS  AND   PbOOEDUKE   THEREIN.  167 

A  verdict  of  a  jury  on  the  question  whettier  an  act  of  bankruptcy  has 
been  committed  does  not  affect  the  question  whether  the  banlirupt  should 
be  discharged,  or  whether  the  property,  the  transfer  of  which  was  an 
alleged  act  of  bankruptcy,  should  be  retained  by  the  transferee.  In  re 
Dibblee  et  al.,  3  Ben.  283;  7  Fed.  Cas.  651. 

On  a  proper  showing,  the  district  court  as  a  court  of  bankruptcy  may 
open  a  decree  and  grant  a  rehearing  on  the  ground  of  newly-discovered 
evidence.  Judge  Drummond  expressed  the  opinion  that  the  circuit  court 
may  peremptorily  order  the  district  court  to  do  so.  In  re  Great  Western 
Tel.  Co.,  5  Blss.  1050;  10  Fed.  Oas.  1053. 

The  only  proof  in  support  of  an  involuntary  petition  was  the  statement 
of  the  alleged  bankrupt  that  he  had  sold  a  stock  of  goods  to  his  wife  for 
$5,000  and  lost  the  money.  The  court  decided  that  no  act  of  bankruptcy 
was  proved,  for  if  the  statement  proved  the  sale,  it  also  proved  the  loss 
of  the  purchase  price.    In  re  Franklin,  8  Ben.  233;  9  Fed.  Oas.  709. 

On  a  trial  on  a  petition  charging  acts  of  bankruptcy  and  a  denial  by 
the  bankrupt,  it  is  not  necessary  that  the  petitioning  creditor  make  proof 
of  his  debt.    Phelps  v.  Olasen,  Woolw.  204;  19  Fed.  Cas.  445. 

Acts  of  bankruptcy  being  in  proof,  the  court  will  not  permit  an  inquiry 
to  be  made  into  alleged  collusion  between  one  of  the  bankrupts  and  the 
petitioning  creditors.    In  re  Bininger  et  al.,  7  Blatchf.  262;  3  Fed.  Cas.  412. 

When  the  petition  for  review  is  not  filed  at  the  same  term  at  which  the 
decree  is  made,  it  cannot  be  entertained,  the  rule  requiring  bankruptcy 
proceedings  to  conform  when  applicable  to  equity  practice.  In  re  Ander- 
son, 23  Fed.  Rep.  482. 

An  attorney  for  a  corporation  may  appear  and  admit  acts  of  bankruptcy 
without  a  vote  of  the  stockholders  conferring  such  authority.  Leiter  et 
al.  V.  Rep.  Fire  Ins.  Co.,  7  Biss.  26;  15  Fed.  Cas.  274. 

Justice  Daniel  decided  under  the  Act  of  1841  that  a  debtor  cannot  be 
adjudged  a  bankrupt  when  he  omits  debts  from  his  schedule  of  liabilities, 
nor  when  he  had  contracted  debts  in  a  fiduciary  character,  notwithstand- 
ing he  had  debts  not  of  such  a  character.  In  re  Hardison,  4  Law  Rep. 
255;  11  Fed.  Cas.  498  (1842). 

A  marshal's  return  to  a  warrant  must  show  full  compliance  with  the 
provisions  of  section  12  of  the  Act  of  1867,  and  general  order  number  13. 
In  re  Ferris  et  al.,  6  Ben.  473;  8  Fed.  Cas.  11&4. 

Effect  of  Adjudication. 

An  adjudication  of  bankruptcy  is  not  subject  to  legislative  control,  and 
hence  is  not  affected  by  a  subsequent  act  of  congress.  In  re  Raffauf,  6 
Biss.  150;  20  Fed.  Oas.  165. 

A  petition  in  bankruptcy  was  held  to  be  an  action,  and  an  adjudication 
thereon  a  final  judgment,  which  even  congress  cannot  annul  or  set  aside. 
In  re  Comstock  et  al.,  3  Saw.  128;  6  Fed.  Cas.  241. 

An  adjudication  of  bankruptcy  is  a  judgment,  and  cures  irregularities 
that  did  not  go  to  the  jurisdiction  of  the  court.  In  re  Getchell,  8  Ben. 
256;  10  Fed.  Cas.  268. 


168  The  Banketjptct  Law. 

An  adjudication  in  bankruptcy  is  a  notice  to  all  the  world,  being  in  the 
nature  of  a  judgment  in  rem.    In  re  Wallace,  Deady,  433;  29  Fed.  Cas.  65. 

An  adjudication  of  bankruptcy  against  a  corporation  is  in  the  nature  of 
a  decree  in  rem.    Lamp  Chimney  Oo.  v.  Ansonia  Brass  Co.,  91  U.  S.  656. 

Proceedings  in  bankruptcy  are  proceedings  in  rem  when  they  affect  only 
the  assets,  but  as  to  other  property,  they  bind  only  those  who  have 
notice.    In  re  Judkins,  2  Hughes,  401;  13  Fed.  Cas.  1193. 

Where  the  plaintiff  and  the  parties  whom  he  represented  formed  an 
integral  part  of  a  corporation  which  had  been  adjudged  to  be  bankrupt, 
they  are  parties  to  the  proceedings  in  bankruptcy,  and  cannot  attack  it 
in  a  collateral  action.    Graham  v.  Boston  H.  &  E.  R.  Co.,  14  Fed.  Rep.  753. 

An  adjudication  of  bankruptcy  where  the  court  had  jurisdiction  is  con- 
clusive of  the  facts  decreed  against  persons  claiming  an  adverse  interest 
in  the  property  of  the  bankrupt.    Chapman  v.  Brewer,  114  U.  S.  158. 

An  adjudication  in  involuntary  proceedings  is  evidence  as  to  the  per- 
sons not  parties  of  the  commission  of  the  act  of  bankruptcy,  and  that 
there  was  a  debt  due  the  petitioning  creditor.  Shawhan  v.  Wherritt,  7 
How.  27. 

Impeadhinent  of  Adjudication. 

An  adjudication  in  bankruptcy  cannot  be  impeached  collaterally  by  a 
party  to  the  proceedings,  and  shareholders  of  a  corporation  are  parties  to 
bankruptcy  proceedings  against  it.  ■  Graham  v.  Boston  H.  &  E.  R.  Co.,  118 
U.  S.  161. 

Held,  under  the  Act  of  1841,  that  creditors  cannot  attack  an  adjudica- 
tion of  bankruptcy  collaterally,  but  are  bound  as  by  a  decree  in  rem. 
Shawhan  v.  Wherritt,  7  How.  627. 

An  adjudication  in  bankruptcy  against  a  corporation  is  in  the  nature  of 
a  decree  in  rem  as  respects  the  status  of  the  corporation,  and  when  the 
court  had  jurisdiction,  and  the  adjudication  is  correct  in  form,  and  due 
notice  was  given,  it  cannot  be  attacked,  in  a  collateral  proceeding.  New 
Lamp  Chimney  Co.  v.  Ansonia  B.  &  C  Co.,  91  TJ.  S.  656. 

The  signing  and  verification  of  a  voluntary  petition  by  an  agent  of  the 
debtor  is  suflicient  to  sustain  the  jurisdiction  of  the  court  against  a  col- 
lateral attack.    Wald  v.  Wehl,  6  Fed.  Rep.  163. 

An  order  of  the  district  court,  adjudicating  a  debtor  a  bankrupt,  made 
after  the  return  day,  and  upon  a  petition  of  a  creditor  and  after  notice  to, 
and  appearance  by,  the  debtor,  though  it  may  be  irregular,  is  not  void, 
and  cannot  be  collaterally  assailed  by  the  assignees  under  a  previous 
voluntary  assignment.  Hobson  et  al.  v.  Markson  et  al.,  1  Dill.  421;  10  Fed. 
Cas.  269. 

A  creditor  who  had  obtained  a  preference  by  attachment  was  heard  by 
the  court  on  a  petition  to  set  aside  an  adjudication  in  bankruptcy.  In  re 
Donnelly,  5  Fed.  Rep.  783. 

The  court  annulled  an  adjudication  of  bankruptcy  in  voluntary  pro- 
ceedings where  all  the  claims  had  been  paid  by  assignment  to  one  creditor, 
who  released  the  bankrupt.    Case  of  Stern,  22  Fed.  Cas.  130O. 


Courts  akd  Proceduee  Therein.  169 

Five  months  after  the  bankrupt  had  united  with  his  partners  In  a 
voluntary  petition,  he  moved  to  set  aside  the  adjudication  on  the  ground 
that  he  was  misled  by  his  partners  by  fraudulent  representations;  that 
the  firm  was  not  in  fact  insolvent,  etc.  Held,  that  the  motion  would  not 
be  entertained  in  view  of  the  fact  that  the  rights  of  the  creditors  had 
become  fixed  with  his  acquiescence.  In  re  Court  et  al.,  17  N.  B.  R.  555; 
6  Fed.  Cas.  &i8. 

The  court  ordered  the  annullment  of  an  adjudication  upon  the  assent 
of  all  the  known  creditors,  and  after  the  publication  of  notice  of  the 
application.    In  re  Magee,  16  Fed.  Oas.  382. 

Where  the  return  of  the  marshal  showed  due  service,  an  adjudication 
in  bankruptcy  will  not  be  set  aside  on  the  motion  of  a.  creditor  who 
swears  that  he  did  not  receive  notice  of  the  adjudication.    In  re  Groome, 

I  Fed.  Rep.  464. 

It  is  not  necessary  that  an  attaching  creditor  should  be  a  party  to  the 
proceedings  in  bankruptcy  to  authorize  him  to  move  to  set  aside  an 
adjudication.    In  re  Bergeron,  12  N.  B.  R.  385;  3  Fed.  Cas.  266. 

Attorneys  had  appeared  for  an  insolvent  insurance  company,  and  con- 
sented to  an  adjudication.  Six  months  later,  after  several  hundred 
thousand  dollars  of  assets  had  been  collected  and  were  ready  for  dis- 
tribution, certain  stockholders  moved  to  set  aside  the  proceedings.  The 
court  refused  on  the  ground  of  laches.  In  re  Rep.  Ins.  Co.,  8  N.  B.  R.  317; 
20  Fed.  Cas.  552. 

Where  the  debtor  confesses  the  acts  of  bankruptcy  charged  in  the  peti- 
tion, and  a  trustee  is  appointed,  a  creditor  who  has  proved  his  debt  can- 
not be  heard  on  a  motion  to  set  aside  the  adjudication.     In  re  Thomas, 

II  K  B.  B.  330;  23  Fed.  Cas.  932. 

An  application  to  set  aside  an  adjudication  will  not  be  heard  without 
notice  to  the  bankrupt.    In  re  Bush,  6  N.  B.  R.  179;  4  Fed.  Cas.  879. 

An  adjudication  will  not  be  set  aside  because  the  debtors  solicited 
creditors' to  join  in  the  petition.  In  re  Duncan  et  al.,  8  Ben.  365;  8  Fed, 
Cas.  1. 

Dismissal  of  Proceedings. 

When  there  is  but  one  creditor,  the  alleged  bankrupt  is  entitled  to  have 
bankruptcy  proceedings  against  him  dismissed  upon  payment  of  the  debt 
In  re  Sherman,  8  N.  B.  R.  353;  21  Fed.  Cas.  1222  (1873). 

All  parties  whose  interests  might  be  affected  must  consent  before  a 
petition  in  voluntary  bankruptcy  can  be  withdrawn;  but  it  seems  that 
the  assent  of  the  assignee  is  not  always  necessary.  In  re  Gile,  5  Law  Rep,' 
224;  10  Fed.  Cas.  369  (1842) 

Where  the  bankrupt  had  settled  all  his  claims  but  a  few  that  were 
contested,  it  was  held  that  proceedings  in  bankruptcy  might  be  dis- 
missed upon  security  being  given  to  creditors  who  did  not  consent  to  t'le 
dismissal.    In  re  Great  Western  Tel.  Co.,  5  Biss.  1059;  10  Fed.  Oas.  1053. 

Where  a  bankrupt  has  made  a  settlement  and  signed  a  stipulation  by 
which  the  proceedings  were  dismissed,  the  court  in  bankruptcy  will  not 


170  The  Bankhuptct  Law. 

set  It  aside  until  he  has  secured  relief  in  a  separate  suit.  In  re  Bieler,  7 
N.  B.  R.  552;  3  Fed.  Cas.  339. 

An  adjudication  may  be  made  on  a  day  subsequent  to  the  time  fixed  in 
the  order  of  reference;  but  if  the  bankrupt  does  not  appear  within  a 
reasonable  time,  his  petition  will  be  dismissed.  In  re  Hatcher,  1  N.  B.  R. 
390;  li  Fed.  Cas.  814. 

A  petition  in  involuntary  bankruptcy  will  be  dismissed  where  the 
alleged  bankrupt  denies  that  the  petitioner  is  a  creditor,  and  establishes 
the  denial  by  proof.    In  re  Cornwall,  9  Blatchf.  114;  6  Fed.  Cas.  586. 

After  the  filing  of  a  petition,  the  petitioning  creditor  commenced  a  suit 
at  law  against  the  bankrupt  and  prosecuted  it  to  judgment.  Held,  that 
this  was  not  sufllcient  ground  for  dismissing  the  petition  in  bankruptcy. 
Van  Kleeck  et  al.  t.  Thurber,  28  Fed.  Cas.  1081  (1842). 

Tkial  by  Juhy. 

§  19.  Jury  Trials. —  (a.)  A  person  against  whom  an  involuntary 
petition  has  been  filed  shall  be  entitled  to  have  a  trial  by  jury,  in  re- 
Bjiect  to  the  question  of  his  insolvency,  except  as  herein  otherwise 
provided,  and  any  act  of  bankruptcy  alleged  in  such  petition  to  have 
been  committed,  upon  filing  a  written  application  therefor  at  or 
before  the  time  within  which  an  answer  may  be  filed.  If  such  appli- 
cation is  not  filed  within  such  time,  a  trial  by  jury  shall  be  deemed 
to  have  been  waived. 

(b.)  If  a  jury  is  not  in  attendance  upon  the  court,  one  may  be 
specially  summoned  for  the  trial,  or  the  case  may  be  postponed,  or, 
if  the  case  is  pending  in  one  of  the  district  courts  within  the  jurisdic- 
tion of  a  circuit  court  of  the  United  States,  it  may  be  certified  for 
trial  to  the  circuit  court  sitting  at  the  same  place,  or  by  consent  of 
parties  when  sitting  at  any  other  place  in  the  same  district,  if  such 
circuit  court  has  or  is  to  have  a  jury  first  in  attendance. 

(c.)  The  right  to  submit  matters  in  controversy,  or  an  alleged 
offense  under  this  Act,  to  a  jury  shall  be  determined  and  enjoyed, 
except  as  provided  by  this  Act,  according  to  the  United  States  laws 
now  in  force  or  such  as  may  be  hereafter  enacted  in  relation  to  trials 
by  jury. 

Judge  Blatchford  expressed  doubt  whether  under  the  Act  of  1867  a  jufy 
could  be  demanded  on  any  day  but  the  return  day.  In  re  Pupke  et  al.,  1 
Ben.  342;  20  Fed.  Cas.  59. 

Under  the  Law  of  1867  an  involuntary  bankrupt  could  not  demand  a 
trial  by  jury  if  he  did  not  appear  on  the  return  day  of  the  rule.  In  re 
Gebhardt,  3  N.  B.  R.  268;  10  Fed.  Cas.  141. 


CouBTS  AND  Procedure  Therein.  171 

Held,  under  rule  24  in  pursuance  of  the  Act  of  1867,  that  it  Is  not  too 
late  to  ask  for  a  jury  trial  when  specifications  in  opposition  to  a  discharge 
are  set  for  hearing.    In  re  Hoist,  11  Fed.  Rep.  856. 

Held,  under  the  Act  of  1867  (sections  21980,  4984,  R.  ,S.),  that  a  creditor 
who  appealed  to  the  circuit  court  from  an  order  disallowing  a  claim  had 
a  right  to  a  jury  trial.    Thistle  v.  Hamilton,  4  Dill.  162;  23  Fed.  Oas.  920. 

Under  the  Act  of  1841,  it  was  held  that  the  district  court  had  power  to 
set  aside  the  verdict  of  a  jury  which  tried  an  issue  under  section  4  of 
that  Act,  and  to  order  a  new  trial  in  accordance  with  the  principles  ob- 
served by  courts  of  law.  Ex  parte  Corse,  1  N.  Y.  Leg.  Obs.  231;  6  Fed. 
Oas.  600. 

A  court  of  bankruptcy  has  the  same  power  over  verdicts  of  juries  that 
is  exercised  by  courts  of  common  law,  and  may  in  proper  cases  set  them 
aside  and  order  a  new  trial.  In  re  De  Forest,  9  N.  B.  R.  278;  7  Fed.  Cas. 
368. 

Administration  of  Oaths. 

§  30.  Oaths,  Affirmations. —  (a.)  Oaths  required  by  this  Act,  ex- 
cept upon  hearings  in  eouTt,  may  be  administered  by  (1)  referees  ;  (2) 
ofBeers  authorized  to  administer  oaths  in  proceedings  before  the  courts 
of  the  United  States,  or  under  the  laws  of  the  State  where  the  same 
are  to  be  taken;  and  (3)  diplomatic  or  consular  ofScers  of  the  United 
States  in  any  foreign  country. 

(h.)  Any  person  conscientiously  opposed  to  taking  an  oath  may,  in 
lieu  thereof,  affirm.  Any  person  who  shall  affirm  falsely  shall  be 
punished  as  for  the  making  of  a  false  oath. 

Judge  Blatchford  dismissed  a  petition  under  the  Act  of  1867  that  was 
verified  before  a  notary  public.    In  re  Heller  et  al.,  11  Fed.  Oas.  1052. 

Evidence. 

§  31.  Evidence. —  (a)  A  court  of  bankruptcy  may,  upon  appli- 
cation of  any  officer,  bankmpt,  or  creditor,  by  order  require  any  desig- 
nated person,  including  the  bankrupt,  who  is  a  competent  witness 
under  the  laws  of  the  State  in  which  the  proceedings  are  pending,  to 
appear  in  court  or  before  a  referee  or  the  judge  of  any  State  court,  to 
be  examined  concerning  the  acts,  conduct,  or  property  of  a  bankrupt 
whose  estate  is  in  process  of  administration  under  this  Act. 

(b.)  The  right  to  take  depositions  in  proceedings  under  this  Act 
shall  be  determined  and  enjoyed  according  to  the  United  States  laws 
now  in  force,  or  such  as  may  be  hereafter  enacted  relating  to  the 
taking  of  depositions,  except  as  herein  provided. 


irS  The  Bankbuptct  Law. 

(c.)  Notice  of  the  taking  of  depositions  shall  be  filed  with  the 
referee  in  every  ease.  When  depositions  are  to  be  taken  in  opposi- 
tion to  the  allowance  of  a  claim  notice  shall  also  be  served  npon  the 
claimant,  and  when  in  opposition  to  a  discharge  notice  shall  also  be 
served  upon  the  bankrupt. 

(d.)  Certified  copies  of  proceedings  before  a  referee,  or  of  papers, 
when  issued  by  the  clerk  or  referee,  shall  be  admitted  as  evidence  with 
like  force  and  effect  as  certified  copies  of  the  records  of  district  courts 
of  the  United  States  are  now  or  may  hereafter  be  admitted  as  evi- 
dence. 

(e.)  A  certified  copy  of  the  order  approving,  the  bond  of  a  trustee 
shall  constitute  conclusive  evidence  of  the  vestipg  in  him  of  the  title 
to  the  property  of  the  bankrupt,  and  if  recorded  shall  impart  the  same 
notice  that  a  deed  from  the  bankrupt  to  the  trustee  if  recorded  would 
have  imparted  had  not  bankruptcy  proceedings  intervened. 

(f.)  A  certified  copy  of  an  order  confirming  or  setting  aside  a  com- 
position, or  granting  or  setting  aside  a  discharge,  not  revoked,  shall 
be  evidence  of  the  jurisdiction  of  the  court,  the  regularity  of  the  pro- 
ceedings, and  of  the  fact  that  the  order  was  made. 

(g.)  A  certified  copy  of  an  order  confirming  a  composition  shall 
constitute  evidence  of  the  revesting  of  the  title  of  his  property  in  the 
bankrupt,  and  if  recorded  shall  impart  the  same  notice  that  a  deed 
fram  the  trustee  to  the  bankrupt  if  recorded  would  impart. 

Exammation  of  tlie  Bankrupt. 

It  is  tlie  duty  of  a  creditor  who  wishes  to  examine  the  bankrupt  to 
move  in  the  matter,  and  the  bankrupt  has  no  other  duty  than  to  attend 
on  notice.    In  re  Littlefield,  1  Low.  331;  15  Fed.  Cas.  624. 

The  fact  that  a  bankrupt  has  already  answered  a  question  will  not 
excuse  him  for  refusing  to  answer  when  asked  by  another  creditor.  In 
re  Vogel,  5  N.  B.  K.  393;  28  Fed.  Cas.  1244. 

Where  the  bankrupt  had  testified  that  he  did  not  own  certain  property, 
it  was  held  that  all  further  questions  relating  to  it  were  irrelevant.  In 
re  Van  Tuyl,  1  N.  B.  R.  63S;  28  Fed.  Cas.  1088. 

The  bankrupt  may  be  required  to  appear  for  examination  on  the  applica- 
tion of  a  creditor,  notwithstanding  a  trustee  and  committee  of  creditors 
have  been  appointed  under  section  43  of  the  Act  of  186Y.  In  re  CooKe 
et  al.,  10  N.  B.  E,  146;  6  Fed.  Oas.  418. 

A  bankrupt  was  Interrogated  concerning  property  of  his  wife,  and  his 
own  acts  relating  thereto.  The  bankrupt  refused  to  answer  on  the  ground 
that  the  transactions  occurred  prior  to  the  time  when  the  creditor's  debt 
was  contracted.  The  court  required  him  to  answer.  In  re  Oraig,  3  N.  B. 
R.  100:  6  Fed.  Oas.  711. 


Courts  and  Procedure  Thereik.  '173 

A  creditor  has  a  right  to  require  of  the  bankrupt  a  full  disclosure  under 
oath  of  everything  relating  to  his  estate,  but  where  there  has  been  one 
examination,  and  ample  opportunity  has  been  afforded  to  creditors,  an 
application  for  further  examination  will  be  refused.  In  re  Frisble,  13  N. 
B.  R.  349;  9  Fed.  Gas.  961. 

At  the  first  meeting  of  creditors  a  debt  was  proven  as  secured  by 
certain  liens  and  an  assignment,  the  value  and  extent  of  which  security 
was  unknown  to  the  creditor  so  secured.  Held,  that  such  creditor  was 
entitled  to  examine  the  alleged  bankrupt  on  oath.  In  re  Schwab,  8  Ben. 
353;  21  Fed.  Gas.  764  (1876). 

The  pendency  of  composition  proceedings  suspended  the  right  of  a 
creditor  to  examine  the  bankrupt  under  the  Act  of  1867  (section  5086,  R. 
S.).    In  re  TifEt,  18  N.  B.  R.  177;  28  Fed.  Gas.  1212. 

It  Is  not  competent  to  examine  a  bankrupt  on  the  question  whether  a 
debt  was  created  by  fraud.  In  re  Rosenfield,  1  N.  B.  R.  575;  20  Fed.  Oas. 
1202. 

A  bankrupt  cannot  be  required  to  give  an  answer  to  a  question  which 
might  render  him  summarily  liable  for  an  offense  under  the  Bankrupt 
Act  of  1867.    In  re  Patterson,  1  N.  B.  R.  152;  18  Fed.  Gas.  1319  (1867). 

A  bankrupt,  on  his  examination,  may  decline  to  answer  any  question 
which  he  cannot  answer  without  incriminating  himself.  In  re  Kock,  1 
N.  B.  R.  549;  14  Fed.  Oas.  832. 

A  bankrupt  cannot  refuse  to  answer  questions  put  to  him  on  an  ex- 
amination concerning  property  in  which  it  is  alleged  that  he  has  an 
interest    In  re  Bonesteel,  2  N.  B.  R.  330;  3  Fed.  Gas.  8i9. 

Where  the  allegations  in  the  creditor's  proof  are'  not  denied  by  the 
bankrupt,  creditors  will  not  be  allowed  to  examine  the  bankrupt  to  prove 
the  nature  of  the  transaction  out  of  which  the  indebtedness  arose,  for 
the  purpose  of  disclosing  facts  which  vrould  bar  a  discharge.  Such  ex- 
amination is  wholly  irrelevant.  In  re  Wright,  2  Ben.  509;  2  N.  B.  R. 
142;  30  Fed.  Gas.  656  (1868). 

A  claim  of  a  creditor  having  been  proved  was  disputed  by  the  bank- 
rupt as  invalid  for  usury.  Held,  that  notwithstanding  the  objections  of 
the  bankrupt  and  other  creditors,  the  creditor  whose  claim  was  disputed 
had  the  right  to  examine  the  bankrupt  before  the  election  of  an  assignee. 
In  re  Winshlp,  7  Ben.  19i;  30  Fed.  Oas.  306  (1874). 

Creditors  who  have  proved  their  claims  are  entitled  to  an  order  for 
an  examination  of  the  bankrupt,  notwithstanding  their  claims  are  con- 
tested.   In  re  Belden  et  al.,  4  N.  B.  R.  194;  3  Fed.  Oas.  82. 

A  bankrupt  who  left  the  district  after  an  order  for  an  examination  will 
be  denied  a  discharge  until  he  has  submitted  to  an  examination.  In  re 
Kingsley,  16  N,  B.  R.  301;  14  Fed.  Gas.  590. 

A  bankrupt,  after  examination,  has  the  right  to  be  cross-examined,  or 
further  examined  in  his  own  behalf,  after  the  creditor  or  assignee  has 
concluded,  so  far  as  may  be  necessary,  to  explain  or  qualify  matters  pre- 
viously brought  out  apparently  unfavorable  to  himself,  or  matters  which 
are  obscure.    In  re  Moles,  2  Low.  362;  18  Fed.  Gas.'  464. 


174  The  Bankeuptcy  Law. 

It  was  held  under  section  26  of  the  Act  of  ISe^,  and  general  order 
number  10,  that  a  bankrupt  could  be  examined  and  cross-examined  like 
any  other  witness.    In  re  Levy  et  al.,  1  Ben.  496;  15  Fed.  Gas.  427. 

A  bankrupt  attending  as  witness  at  the  instance  of  a  creditor  was  held 
not  to  be  entitled  to  fees  under  the  Act  of  1867.  In  re  McNair,  3  N.  B.  R.' 
219;  16  Fed.  Oas.  315. 

A  bankrupt  is  not  entitled  to  an  allowance  of  witness  fees  upon  his 
examination  in  bankruptcy.  In  re  O'Kell,  2  Ben.  144;  18  Fed.  Oas.  632 
(1868). 

On  a  hearing  in  bankruptcy  a  creditor  is  only  bound  to  pay  the  ex- 
penses of  his  own  examination.  If  the  bankrupt  makes  further  state- 
ments after  his  examination  by  the  creditor  is  closed,  he  becomes  his 
own  witness,  and  must  pay  the  expenses.  In  re  Mealy,  2  N.  B.  R.  128; 
16  Fed.  Oas.  1302. 

Upon  the  examination  of  a  bankrupt,  his  attorney  may  attend  and 
object  to  improper  questions,  but  the  bankrupt  cannot  consult  with  his 
attorney,  unless  the  register  can  see  cause  therefor.  In  re  Tanner,  1 
Low.  215;  23  Fed.  Gas.  687. 

It  is  not  permissible  for  a  bankrupt  during  his  examination  to  consult 
with  his  counsel  before  answering  questions,  except  by  leave  of  the 
court  or  register.    In  re  Oollins,  1  N.  B.  R.  551;  6  Fed.  Oas.  116. 

The  bankrupt,  while  under  examination,  should  have  the  privilege  of 
consulting  vrith  his  counsel  in  relation  to  his  answers,  providing  such 
consultation  does  not  cause  delay  in  the  proceedings.  In  re  Patterson, 
1  N.  B.  R.  125;  18  Fed.  Gas.  1315  (1867). 

Judge  Fox,  of  the  district  court  of  Maine,  said  that  while  he  did  not 
approve  of  the  bankrupt  consulting  with  his  counsel  on  his  examination, 
the  question  must  be  determined  by  the  register  according  to  the  cir- 
cumstances of  each  particular  case.  In  re  Lord,  3  N.  B.  R.  253;  15  Fed. 
Gas.  872. 

It  was  held  to  be  competent  under  the  Act  of  1867,  on  the  examination 
of  the  bankrupt,  for  his  own  counsel  to  cross-examine  him.  In  re  Leach- 
man,  1  N,  B.  R.  391;  15  Fed.  Gas.  97. 

The  bankrupt  was  arrested  on  process  in  a  civil  action,  while  on  his 
way  to  the  register's  office  for  the  purpose  of  Ueing  examined.  Judge 
Blatchford  ordered  that  he  be  released  so  as  to  attend  the  examination; 
but  decided  that  as  soon  as  his  privilege  as  a  witness  should  cease,  he 
might  be  rearrested.    In  re  Kimball,  2  Ben.  38;  14  Fed.  Oas.  474. 

Under  the  Act  of  1867,  an  order  for  the  examination  of  a  bankrupt  could 
only  be  made  on  a  verified  petition  or  affidavit  shoviring  good  cause  for 
the  granting  of  the  order.    In  re  Adams,  2  Ben.  503;  1  Fed.  Gas.  78. 

It  was  held  unnecessary  that  an  application  of  an  assignee  for  the 
examination  of  the  bankrupt  should  be  verified,  or  that  it  should  specify 
the  reasons  for  the  same,  or  the  matters  upon  which  it  was  proposed 
to  examine  him.    In  re  Lanier,  2  N.  B.  R.  154;  14  Fed.  Oas.  1116. 

The  fact  that  one  creditor  has  examined  the  bankrupt  is  no  reason  for 
withholding  the  privilege  from  another  creditor.    But  the  bankrupt  must 


COUETS   AND   PeOOEDUEB   THEREIN.  175 

be  protected  as  to  such  examination  from  annoyance,  oppression,  and 
mere  delay.    In  re  Adams,  3  Ben.  7;  1  Fed.  Oas.  81. 

After  the  examination  of  the  banliriipt  had  commenced,  he  moved  to 
vacate  the  order  because  it  was  not  founded  on  an  aflldavit.  The 
register  denied  the  motion,  and  the  court  sustained  his  action.  In  re 
McBrlen,  2  Ben.  513;  15  Fed.  Oas.  1218. 

On  an  oral  application,  the  register  made  an  order  for  the  examina- 
tion of  the  bankrupt.  On  objection  by  the  bankrupt  Judge  Blatchford 
held  that  the  granting  of  the  order  was  a  matter  of  discretion,  and  that 
the  facts  did  not  show  that  the  discretion  was  abused.    In  re  Solace, 

4  Ben.  143;  22  Fed.  Oas.  782. 

The  register  made  an  order  for  the  examination  of  a  bankrupt,  reciting 
that  it  was  made  on  the  application  of  parties  claiming  to  be  interested 
and  who  had  duly  proved  their  debt.  The  application  was  not  verified. 
It  was  held  that  the  order  was  properly  issued.    In  re  Vetterleln  et  al., 

5  Ben.  7;  28  Fed.  Gas.  1170. 

An  opportunity  should  be  given  for  a  full  examination  of  the  bank- 
rupt as  to  all  of  his  transactions;  but  It  Is  not  good  practice  to  give 
such  an  opportunity  to  each  creditor  separately.  A  second  examination 
will  not  be  ordered  except  for  cause  shown.  In  re  Gilbert,  1  Low.  340; 
10  Fed.  Gas.  344. 

Examination  of  the  bankrupt  had  been  ordered  on  the  application  of 
a  creditor  who  had  proved  his  claim.  The  bankrupt  refused  to  be  sworn, 
saying  that  he  had  a  set-off  which  extinguished  the  debt  of  the  creditor. 
The  court  held  that  he  must  submit  to  an  examination.    In  re  Kingsley, 

6  Ben.  300;  14  Fed.  Oas.  587. 

A  bankrupt  who  had  indorsed  a  note  before  the  commencement  of 
proceedings,  and  who  had  thereafter  been  discharged,  was  held  not  to 
be  barred  as  a  witness  for  the  Indorsee  on  the  ground  of  interest.  Mur- 
ray et  al.  V.  Marsh  et  al.,  1  Brun.  Col.  Oas.  22;  17  Fed.  Gas.  1059  (1803). 

It  was  held  under  the  Act  of  1867  that  a  bankrupt,  on  his  examination 
before  a  register,  could  be  examined  to  show  that  the  debt  to  the  cred- 
itor making  the  examination  was  fraudulently  contracted.  In  re  Kock, 
1  N.  B.  R.  549;  14  Fed.  Oas.  832. 

A  bankrupt  was  asked  on  examination  whether,  after  filing  his  peti- 
tion, he  did  not  make  a  deposit  of  some  thousands  of  dollars  In  money. 
The  court  held  that  the  question  was  proper  and  relevant,  and  must  be 
answered.    In  re  McBrien,  3  Ben.  481;  15  Fed.  Oas.  1219. 

A  bankrupt  on  examination  will  answer  or  refuse  to  answer  a  ques- 
tion at  his  own  risk.  If  he  refuse,  the  question  should  be  certified  to 
the  court,  and  thereupon  the  judge  will  decide  whether  the  question  was 
a  proper  one.    In  re  Rosenfield,  1  N.  B.  R.  319;  20  Fed.  Oas.  1205. 

A  bankrupt  was  asked:  "With  what  firm,  If  any,  are  you  at  present 
connected,  or  are  your  transactions  made  by  you  individually? "  The 
bankrupt  having  stated  that  the  question  had  no  connection  with  his 
business  prior  to  the  date  of  filing  his  petition,  the  court  sustained  his 
refusal  to  answer.    Ibid. 


176  The  Bankruptcy  Law. 

On  the  day  appointed  for  the  examination  of  the  bankrupt,  a  creditor 
failed  to  appear.  Another  day  was  appointed  on  which  the  bankrupt 
failed  to  appear.  Both  appeared  on  a  subsequent  day,  and  the  examina- 
tion proceeded.  The  district  court  refused  to  interfere  with  the  examina- 
tion.   In  re  Robinson  et  al.,  2  N.  B.  R.  516;  20  Fed.  Cas.  982. 

Under  the  Act  of  1867  the  register  could  pass  upon  the  admissibility 
of  questions  on  the  examination  of  a  bankrupt,  and  at  the  close  of  the 
testimony  entertain  motions  to  strike  out  answers  or  admit  questions 
that  he  had  excluded,  and  thereupon  certify  the  questions  for  the  deci- 
sion of  the  court.    In  re  Lyon,  1  N.  B.  R.  Ill;  15  Fed.  Gas.  1179. 

Under  the  Act  of  1867  it  was  held  that  the  register  had  no  right  to 
fix  an  arbitrary  limit  to  the  examination  of  the  bankrupt,  though  he 
could  interpose  to  prevent  vexation  and  delay.  In  re  Tift,  17  N-  B.  R. 
421;  23  Fed.  Cas.  1219. 

Under  the  Act  of  1867  the  register  had  no  power  to  fix  an  arbitrary 
limit  to  the  examination  of  a  bankrupt  in  composition  proceedings.  In 
re  Waitzfelder  et  al.,  8  Ben.  423;  28  Fed.  Cas.  1342. 

Two  years  after  bankrupt's  discharge,  the  assignee  sought  to  recover 
assets  alleged  to  have  been  fraudulently  omitted  from  the  bankruptcy 
schedule.  Held,  that  the  assignee  was  not  entitled  to  examine  the  bank- 
rupt for  the  purpose  of  securing  evidence  of  such  assets.  In  re  Wit- 
kowskl,  10  N.  B.  R.  209;  30  Fed.  Cas.  403  (1874). 

Judge  Blatchford  held  that  a  bankrupt  could  be  subjected  to  an  ex- 
amination under  section  26  of  the  Act  of  1867,  more  than  two  years  after 
he  had  received  his  discharge.  In  re  Heath  et  al.,  7  N.  B.  R.  448;  11 
Fed.  Cas.  975. 

When  it  is  desired  to  examine  a  bankrupt  after  his  discharge  as  to 
property  alleged  to  have  been  fraudulently  transferred,  a  plenary  suit 
is  necessary.    In  re  Dole,  11  Blatchf.  499;  7  Fed.  Cas.  828,  832. 

After  his  discharge,  a  bankrupt  cannot  be  required  by  summary  peti- 
tion to  submit  to  an  examination  concerning  property  alleged  to  have 
been  fraudulently  transferred.    Ibid. 

The  testimony  of  the  bankrupt  was  held  to  be  inadmissible  to  prove 
a  claim  by  his  wife,  for  money  alleged  to  have  been  loaned  to  him  out 
of  her  separate  estate.  Bechtel's  Case,  3  Fed.  Cas.  16.  To  the  contrary 
efeect,  see  In  re  Bean,  14  N.  B.  R.  182;  2  Fed.  Cas.  1120'. 

Th.e  Wife  of  the  Bankrupt. 

The  wife  of  the  bankrupt,  and  all  parties  to  the  proceedings,  are  com- 
petent witnesses  in  bankruptcy.    In  re  Anderson,  23  Fed.  Rep.  482. 

The  wife  of  a  bankrupt  must  attend  and  submit  to  an  examination 
in  bankruptcy  proceedings  the  same  as  any  other  witness.  In  re  Wool- 
ford,  4  Ben.  9;  30  Fed.  Oas.  602  (1870). 

The  district  court  for  the  district  of  Massachusetts  held  that  a  creditor 
who  was  the  wife  of  a  bankrupt  was  a  competent  witness  in  bankruptcy 
proceedings.    In  re  Richards,  17  N.  B.  R.  562;  20  Fed.  Cas.  692. 


CouBTS  AND  Pkocedube  Thereik.  177 

It  was  held  under  the  Act  of  1867  that  the  wife  of  a  bankrupt  was  not 
obliged  to  appear  for  examination  until  she  was  paid  her  fees  as  a  wit- 
ness.   In  re  Van  TuU,  2  N.  B.  R.  70;  28  Fed.  Cas.  1090. 

The  wife  of  a  bankrupt  cannot  be  examined  concerning  the  admissions 
of  her  husband  as  to  his  dealings  with  third  persons;  but  may  be  re- 
quired to  testify  to  transactions  to  which  she  was  a  party  or  witness. 
In  re  Gilbert,  1  Low.  340;  10  Fed.  Cas.  344. 

When  the  wife  of  a  bankrupt  is  obliged  to  attend  and  be  examined 
as  a  witness,  she  Is  entitled  to  per  diem  and  mileage.  In  re  Griffen,  2 
Ben.  209;  11  Fed.  Gas.  4. 

When  the  wife  of  a  bankrupt  disobeyed  a  subpoena  to  testify,  it  was 
held  that  the  proper  proceeding  was  an  order  to  show  cause,  and  that 
an  attachment  should  not  be  issued.  In  re  Bellls  et  al.,  3  N.  B.  R.  270;  3 
Fed.  Cas.  135. 

The  wife  of  a  banljrupt,  on  examination  before  the  register,  refused 
to  answer  certain  questions  because  the  matters  concerned  her  private 
business.  Her  refusal  was  certified  to  the  court,  and  she  was  ordered 
to  answer.    In  re  Craig,  4  N.  B.  R.  50;  6  Fed.  Oas.  712. 

An  order  had  been  made  for  an  examination  of  the  bankrupt's  wife, 
and  served  on  the  bankrupt.  She  failed  to  attend,  and  a  discharge  was 
refused  unless  he  should  prove  that  he  was  unable  to  procure  her  attend- 
ance.   In  re  Van  Tuyl,  3  Ben.  237;  28  Fed.  Cas.  1088. 

The  vrife  of  a  bankrupt  cannot  be  compelled  to  testify  as  a  witness 
against  her  husband  on  a  motion  to  set  aside  the  discharge.  So  held 
under  the  Act  of  1867.  Tenny  et  al.  v.  Collins,  4  N.  B.  R.  477;  23  Fed. 
Cas.  848. 

Other  Witnesses. 

W.  had  been  enjoined  from  disposing  of  any  property  received  from  the 
bankrupts  during  the  four  months  preceding  the  adjudication.  There- 
after he  was  summoned  as  a  witness  before  the  register.  An  objection 
by  the  bankrupts  to  his  being  examined  on  the  ground  that  he  had  been 
made  a  party  to  the  proceedings  was  overruled,  as  was  also  a  claim  made 
by  W.  to  a  right  to  be  attended  by  counsel  on  such  examination.  In  re 
Feinberg  et  al.,  3  Ben.  162;  8  Fed.  Cas.  1126. 

Referring  to  the  Act  of  1867,  Judge  Lowell  said:  "  As  the  law  stands 
I  think  the  register  must  have  the  power,  subject  to  the  reviewing  power 
of  the  court,  to  conduct  the  Inquiries  (in  composition  proceedings)  and 
to  take  down  the  substance  of  the  answers,  and  to  adjourn  the  meeting 
by  consent  of  parties,  and  even,  in  some  cases,  against  the  wishes  of  one 
or  the  other;  but  not  to  conduct  a  written  examination  of  the  length  which 
this  appears  to  threaten,  nor  to  permit  all  the  inquiries  and  investigation 
which  would  be  proper  in  bankruptcy,  and  in  most  cases,  I  think  he  would 
be  justified  in  refusing  to  permit  the  inquiries  to  extend  beyond  the  day 
of  the  meeting."    In  re  Proby,  17  N.  B.  R.  175;  20  Fed.  Oas.  1. 

The  register  having  certified  to  the  court  the  refusal  of  a  witness  to 
answer  certain  questions.  Judge  Cadwalader  used  this  language:     "  The 

12 


178  The  Bankeuptct  Law. 

register  holding  provisionally  the  court  of  banliruptcy  should  have  de- 
clared on  the  examination  before  him  the  opinion  which  he  now  certifies, 
and  should  have  ordered  the  examinant  to  answer  the  questions.  If  an 
exception  to  this  ruling  of  the  register  had  then  been  taken,  which  is 
very  improbable,  he  should  have  certified  it  for  the  summary  considera- 
tion of  the  court,  the  examination  proceeding  in  its  other  parts.  If  the 
witness,  or  the  examinant,  without  such  exceptions  refused  to  answer 
the  question,  his  contumacy  should  have  been  reported."  In  re  Keakirt, 
7  N.  B.  R.  329;  20  Fed.  Cas.  368. 

The  proper  practice  under  section  26  of  the  Act  of  1867  was  held  to 
be  that  the  register  should  pass  upon  objections  to  questions  and  enter 
exceptions  to  his  ruling.  At  the  close,  the  questions  thus  raised  should 
be  certified  to  the  judge  for  his  decision,  and  subsequent  proceedings  be 
governed  by  such  decision.  In  re  Levy  et  al.,  1  N.  B.  B.  105;  15  Fed. 
Cas.  432. 

In  the  examination  of  witnesses  in  proceedings  in  bankruptcy,  the 
privilege  of  communications  between  attorneys  and  clients  must  be  re- 
spected; also  that  of  letters  written  by  one  partner  to  another  on  the 
business  of  the  firm.    In  re  Krueger  et  al.,  2  Low.  182;  14  Fed.  Cas.  870. 

The  court  will  expunge  the  proof  of  a  claim  where  the  creditor  refuses 
to  obey  an  order  for  an  examination.  In  re  Kyler,  2  Ben.  414;  14  Fed. 
Oas.  887. 

An  attorney  being  examined  as  a  witness  cannot  add  to  the  oath  which 
he  takes  a  reservation  of  a  right  to  refuse  to  answer  any  question  that 
comes  within  his  privilege.  In  re  Adams,  6  Ben.  56;  1  Fed.  Cas.  82. 
Neither  can  he  refuse  to  be  sworn  nor  object  until  some  question  is  asked 
which  invades  his  privilege.  In  re  Woodward,  4  Ben.  102;  30  Fed.  Cas. 
541.  He  cannot  be  compelled  to  disclose  any  information  as  to  the  affairs 
of  the  bankrupt  which  he  received  as  his  attorney  from  the  bankrupt, 
or  from  a  person  to  whom  he  was  referred  by  the  bankrupt  for  the  pur- 
pose of  obtaining  such  information.  In  re  Aspinwall,  7  Ben.  433;  2  Fed. 
Cas.  64. 

It  may  be  established  by  oral  testimony  that  the  building  in  which 
the  bankrupt  firm  conducted  its  business  was  a  part  of  the  capital  stock 
contributed  to  the  business  of  the  partnership.  In  re  Farmer  et  al.,  18 
N.  B.  R.  207;  8  Fed.  Cas.  1019. 

Under  the  Act  of  1867,  the  register  could  not  require  anyone  but  the 
debtor  to  testify  at  a  meeting  of  creditors  held  to  take  action  on  a  pro- 
posed composition.    In  re  Dobbins,  18  N.  B.  R.  268;  7  Fed.  Cas.  781. 

Held,  that  the  power  conferred  in  section  26  by  the  Act  of  1867,  to 
discover  assets  by  the  examination  of  the  bankrupt,  ceases  with  the 
discharge,  but  will  be  revived  upon  its  being  set  aside.  In  re  Jones,  6  N. 
B.  R.  336;  13  Fed.  Cas.  935. 

In  sustaining  the  refusal  of  a  witness  to  answer  a  question  on  cross- 
examination  in  bankruptcy,  Judge  Blatchford  used  this  language:  "  As 
the  question  did  not  relate  to  any  matter  of  fact  in  issue,  nor  to  any 
matter  contained  in  hH  direct  testimony,  and  as  a  truthful  answer  to  It 


Courts  and  Proceduke  Therbiit.  179 

would  tend  to  degrade  him,  he  was  not  bound  to  answer  it."    In  re  Lewis, 
4  Ben.  67;  15  Fed.  Gas.  453. 

Under  the  Act  of  1867  it  was  not  necessary  that  notice  be  given  to  the 
bankrupt  of  the  examination  of  a  witness  at  the  instance  of  the  assignee. 
In  re  Levy  et  al.,  1  Ben.  454;  15  Fed.  Cas.  425. 

The  attorney  for  the  banlirupt  was  called  as  a  witness  by  parties  op- 
posing their  discharge,  but  he  refused  to  be  sworn.  The  court  ordered 
that  he  be  sworn  and  examined.  In  re  Leland  et  al.,  8  Ben.  204;  15  Fed. 
Cas.  290. 

A  witness  who  had  purchased  claims  against  the  banlirupt  swore  on 
examination  that  he  had  not  obtained  the  money  from  the  banlirupts  or 
either  of  them;  but  refused  to  answer  from  whom  he  had  obtained  it. 
The  court  held  that  he  must  answer.  In  re  Lathrop  et  al.,  4  N.  B.  R. 
93;  14  Fed.  Cas.  1179. 

It  is  not  an  absolute  right  of  a  witness  during  his  examination  In 
bankruptcy  to  consult  with  his  counsel;  but  it  may  be  permitted  by  the 
register  for  good  cause.    In  re  Judson,  2  Ben.  210;  14  Fed.  Cas.  2. 

A  witness  will  be  required  on  a  hearing  in  bankruptcy  to  answer  all 
proper  questions  relating  to  his  transactions  with  the  bankrupt  prior 
to  the  proceedings,  and  to  produce  any  necessary  books  of  account  con- 
taining information  concerning  such  dealings.  In  re  Earle,  3  N.  B.  E. 
304;  8  Fed.  Cas.  251. 

A  witness  must  answer  questions  concerning  his  dealings  with  the 
bankrupt,  notwithstanding  his  answers  might  furnish  evidence  against 
himself  in  a  civil  case.    In  re  Fay,  3  N.  B.  R.  660;  8  Fed.  Cas.  1111. 

An  attachment  was  asked  for  against  witnesses  for  refusing  to  answer 
questions  on  an  examination  under  a  commission.  The  attachment  was 
refused  for  the  reason  that  no  written  interrogatories  accompanied  the 
commission,  and  the  application  did  not  set  forth  questions  which  the 
witnesses  refused  to  answer.  In  re  Glaser,  2  N.  B.  R.  398;  10  Fed.  Cas. 
467. 

Two  witnesses,  on  an  examination  in  bankruptcy,  were  asked  if  they 
resided  at  a  certain  place,  where  a  gambling  house  was  kept.  They  re- 
fused to  answer  on  the  ground  that  the  answer  would  tend  to  criminate 
them,  and  the  court  held  that  they  were  privileged  from  answering  the 
question.    In  re  Graham,  8  Ben.  419;  10  Fed.  Cas.  913. 

An  attorney  may  be  required  to  disclose  facts  concerning  his  client's 
affairs  that  were  not  confided  to  him  by  his  client.  In  re  Donoghue,  2 
Hask.  17;  7  Fed.  Cas.  899. 

A  bill  in  equity  asking  for  a  discovery  of  the  particular  goods  alleged 
to  have  been  fraudulently  transferred  by  a  bankrupt  was  held  bad  on 
demurrer,  the  court  deciding  that  the  complainant  could  secure  the  de- 
sired information  by  compelling  the  preferred  creditor  to  submit  to  an 
examination.    Garrison  v.  Markley,  7  N.  B.  R.  246;  10  Fed.  Cas.  53. 

An  order  on  a  creditor  to  submit  to  an  examination  respecting  a  claim' 
which  he  has  proved  imposes  the  burden  of  proof  upon  him,  and  in 
case  of  his  failure  to  appear,  the  objections  to  the  claim  are  to  be  taken 
as  confessed.    In  re  Lount,  11  N.  B.  R,  315;  15  Fed.  Cas.  988. 


180  The  Bankkuptct  Law. 

An  assignee  had  brought  suit  against  A.  for  the  possession  of  the  bank- 
rupt's books,  which  he  held  as  receiver  of  H.-  under  appointment  of  a 
state  court.  While  this  suit  was  pending,  A.  was  summoned  as  a  wit- 
ness before  the  register,  and  appeared,  but  refused  to  be  sworn  or  to 
produce  the  books  except  upon  an  order  of  the  court  that  appointed 
him.  The  court  ruled  that  he  was  not  privileged;  that  he  must  be  sworn 
and  produce  the  books,  but  that  they  should  remain  in  his  possession.  In 
re  Hulst,  7  Ben.  40;  12  Fed.  Oas.  867. 

It  was  held  by  the  United  States  circuit  court  for  the  district  of  Maine 
that  the  creditor  of  a  bankrupt  was  not  a  competent  witness  for  the 
assignee  in  a  suit  to  increase  the  assets.  Carr  v.  Hilton,  1  Ourt  390;  5 
Fed.  Cas.  137  (1853). 

A  refusal  by  a  judgment  creditor  to  be  examined  as  to  the  question  of 
usury  in  the  debt  upon  which  his  judgment  was  founded  was  sustained 
by  the  court.  McKinsey  et  al.  v.  Harding,  4  N,  B.  R.  38;  16  Fed.  Oas. 
225. 

A  witness  on  an  examination  in  bankruptcy  cannot  refuse  to  answer 
a  question  unless  It  would  accuse  him  of  something  penal  or  Infamous; 
the  fact  that  It  would  subject  him  to  a  civil  Injury  Is  not  a  sufficient 
excuse.    In  re  Danforth,  6  Fed.  Cas.  1150. 

In  the  case  of  a  witness  subpoenaed  during  the  hearing  on  an  applica- 
tion for  a  discharge,  the  bankrupt  is  not  entitled  to  notice  of  such  ex- 
amination, or  to  cross-examine  the  vritness.  In  re  Duncan  et  al.,  8  Ben. 
541;  8  Fed.  Oas.  8. 

A  creditor  presenting  a  claim  in  bankruptcy  subjects  himself  to  the 
jurisdiction  of  the  court,  and  upon  being  examined  as  to  his  debt  is  not 
entitled  to  witness  fees.    In  re  Paddock,  6  N.  B.  K,  396;  18  Fed.  Cas.  975. 

In  an  examination  a  witness  will  be  compelled  to  answer  questions 
respecting  his  transactions  with  the  bankrupt,  and  is  not  entitled  to 
counsel,  notvnthstanding  his  answers  might  establish  a  liability  on  his 
part.  Creditors  other  than  the  examining  creditor  cannot  Interpose  ob- 
jections to  questions  addressed  to  such  a  witness.  In  re  Stuyvesant  Bank, 
6  Ben.  33;  23  Fed.  Cas.  340. 

A  creditor  who  Institutes  an  examination  could  be  required  to  pay  or 
secure  the  register's  fees  before  the  latter  proceeds,  under  the  Act  of  1867. 
In  re  TifCt,  17  N.  B.  R.  550;  23  Fed.  Cas.  1209. 

Held,  under  the  Act  of  1867,  that  the  register  could  not,  on  the  applica- 
tion of  creditors,  order  the  examination  of  a  trustee  appointed  In  pur- 
surance  of  section  43.    In  re  Hicks  et  al.,  2  Fed.  Rep.  851. 

The  right  to  refuse  to  answer  a  question  on  the  ground  of  privilege 
does  not  warrant  refusal  by  counsel  for  a  bankrupt  to  be  sworn  as  a 
witness.  Privilege  cannot  be  Interposed  until  a  question  is  asked  which 
invades  the  privilege.  In  re  Woodward,  4  Ben.  102;  30  Fed.  Cas.  541 
(1870). 

The  provisions  of  section  876,  R.  S.,  as  to  subpoenas  for,  and  attendance 
of,  witnesses  apply  in  bankruptcy.  In  re  Woodward,  8  Ben.  112;  30  Fed. 
Oas.  542  (1875), 


Courts  and  Peoceduee  Thereix.  181 

It  was  held  that  each  party  In  bankruptcy  proceedings  is  chargeable 
with  fees  for  testimony  on  direct  and  cross-examination,  respectively, 
talicen  by  such  party.  Scofleld  v.  Morehead,  2  N.  B.  E.  1;  21  Fed.  Cas.  780 
(1868). 

Judge  Choate  used  this  language:  "I  see  no  objection  to  one  creditor's 
proceeding  in  an  examination  commenced  by  another  if  that  examina- 
tion Is  Incomplete  or  leaves  matters  that  may  aid  the  creditors  in  voting 
on  the  composition  uninvestigated."  In  re  Vanderhoef  et  al.,  28  Fed. 
Cas.  966. 

Judge  Wallace  decided  under  the  Act  of  1867,  that  an  assignee  in  bank- 
ruptcy may  be  required  to  testify  in  the  same  manner  as  any  other  wit- 
ness; but  that  It  was  the  duty  of  the  register  to  protect  him  from  un- 
necessary annoyance.    In  re  Smith,  ^14  N.  B.  R.  432;  22  Fed.  Oas.  403. 

A  debtor  issued  a  series  of  bonds  with  interest  coupons  payable  to 
bearer,  and  secured  the  same  by  a  mortgage  of  real  estate  to  trustees. 
Held,  that  the  bonds  were  negotiable  instruments,  and  that  the  considera- 
tion could  not  be  Inquired  into  upon  an  examination  In  bankruptcy.  In 
re  Leland  et  al.,  6  Ben.  175;  15  Fed.  Oas.  27& 

Depositions  and  Boctuneutary  I>videiice<. 

The  requirements  of  depositions  to  prove  claims  in  bankruptcy  are  con- 
sidered in  the  case  cited.  In  re  Port  Huron  Dock  Co..  14  N.  B.  R.  243; 
19  Fed.  Cas.  1080. 

The  practice  In  taking  depositions  before  a  register  in  bankruptcy 
should  be  conformed  to  the  practice  in  examinations  Before  an  examiner 
In  chancery.    In  re  Levy  et  al.,  1  Ben.  496;  15  Fed.  Cas.  427. 

Testimony  on  proceedings  In  bankruptcy  cannot  be  taken  under  section 
30  of  the  Act  of  1789,  or  the  Act  of  1817,  or  the  Act  of  1872.  In  re  Dunn 
et  al.,  9  N.  B.  R.  487;  8  Fed.  Cas.  96. 

In  a  case  in  bankruptcy,  a  commission  was  issued  out  of  the  United 
States  district  court  for  the  northern  district  of  New  York  to  take  the 
testimony  of  a  witness  In  Illinois.  The  United  States  circuit  court  for 
the  latter  state  held  that  it  could  enforce  the  attendance  of  the  witness 
before  the  commission  and  punish  him  for  contempt  in  case  of  refusal  to 
testify.    In  re  Johnston,  14  N.  B.  R.  567;  13  Fed.  Cas.  881. 

The  bankrupt  was  a  member  of  a  banking  firm  which  belonged  to  a 
syndicate.  The  court  ordered  an  examination  into  the  accovmts  of  all 
the  members  to  determine  what  amounts  were  due  to  and  from  the 
bankrupt's  estate.    In  re  Cooke  et  al.,  12  N.  B.  R.  30;  6  Fed.  Cas.  427. 

The  court  refused  to  allow  the  withdrawal  of  the  original  papers  at- 
tached to  a  deposition  of  the  bankrupt.  In  re  McNair,  2  N.  B.  R.  343; 
16  Fed.  Oas.  315. 

Judge  Nelson,  of  the  district  court  of  Minnesota,  expressed  the  opinion 
that  the  general  scope  of  the  bankrupt  law  would  give  plenaiy  power 
to  the  district  court  to  compel  the  examination  of  all  papers  and  books 
of  the  debtor,  or  In  his  possession.  If  pertinent  to  the  Issue.  In  re  Menden- 
hall,  9  N.  B.  R.  286;  17  Fed.  Cas.  8. 


183  The  Bankexjptot  Law." 

Under  the  Act  of  1867,  and  the  internal  revenue  laws  in  force  in  1868, 
it  was  held  that  an  assignment  of  property  which  had  no  internal 
revenue  stamp  could  not  be  used  as  evidence  of  alleged  acts  of  bank- 
ruptcy.   In  re  Dunham  et  aJ.,  2  Ben.  488;  8  Fed.  Oas.  33. 

It  was  held  that  a  certified  copy  of  an  examination  of  the  bankrupt 
in  supplemental  proceedings  under  the  laws  of  the  state  was  admissible 
in  evidence  to  prove  admissions  by  the  bankrupt,  under  the  Act  of  May 
26,  1790.    In  re  Rooney,  6  N,  B.  R.  163;  20  Fed.  Oas.  1153. 

In  support  of  an  objection  that  the  bankrupts  had  not  kept  proper 
books  of  account,  a  judgment-roll  was  offered  in  evidence  which  showed 
that  the  bankrupt  had  made  false  entries.  It  was  held  that  the  evidence 
was  not  competent  for  that  purpose,  the  judgment  having  been  ob- 
tained by  default.    Metcalf  v.  Oflicer  et  al.,  2  Fed.  Rep.  640. 

To  prove  an  order  in  a  particular  proceeding  in  a  bankruptcy  case,  it 
is  not  necessary  to  produce  the  whole  record  of  that  case,  but  only 
the  whole  record  of  that  particular  proceeding.  Payson  v.  Brooke,  19 
Fed.  Cas.  IT. 

A  copy  of  any  distinct  proceeding  in  bankruptcy  may  be  authenticated 
as  a  separate  record,  and  is  thereupon  admissible  as  presumptive  evi- 
dence of  the  facts  stated.  Michener  v.  Payson,  13  N.  B.  R.  49';  17  Fed. 
Cas.  259. 

The  proceedings  in  bankruptcy  are  admissible  in  evidence  to  show  the 
appointment  of  the  assignee.  Babbitt  v.  Walbrun  et  al.,  1  Dill.  191;  2 
Fed.  Oas.  283,  285;  affirmed  by  the  supreme  court  in  16  Wall.  577. 

In  an  action  by  the  assignee  against  the  assignor  of  a  promissory  note, 
the  former  set  up  to  excuse  his  failure  to  bring  a  suit  against  the  maker 
that  such  a  suit  would  have  been  (unavailing.  Issue  was  joined  on 
such  averment.  Held,  that  the  record  of  an  adjudication  in  bankruptcy 
against  the  maker  of  the  note  before  suit  could  have  been  brought  was 
conclusive  evidence  in  support  of  the  averment.  Wills  et  al.  v.  Claflin  et 
al.,  92  U.  S.  135. 

Refehences. 

§  23.  Reference  of  Cases  After  Adjudication. —  (a.)  After  a 
person  has  been  adjudged  a  bankrupt  the  judge  may  cause  the  trustee 
to  proceed  with  the  administration  of  the  estate,  or  refer  it  (1)  gener- 
ally to  the  referee  or  specially  with  only  limited  authority  to  act  in  the 
premises  or  to  consider  and  report  upon  specified  issues  ;  or  (3)  to  any 
referee  -vithin  the  territorial  jurisdiction  of  the  court,  if  the  conven- 
ience of  parties  in  interest  will  be  served  thereby,  or  for  cause,  or  if  the 
banlcrupt  does  not  do  business,  reside,  or  have  his  domicile  in  the 
disiiict. 

(1).)  The  judge  may,  at  any  time,  for  the  convenience  of  parties  or 
for  cause,  transfer  a  case  from  one  referee  to  another. 


CouETS  AND  Pkocedure  Thereik.  183 

JUBISDICTION  OE  ACTIONS  AT  LaW  OB  IN  EQUITY. 

§  23.  Jurisdiction  of  United  States  and  State  Courts.—  (a.) 
The  United  States  circuit  courts  shall  have  jurisdiction  of  all  con- 
troversies at  law  and  in  equity,  as  distinguished  from  proceedings  in 
bankruptcy,  between  trustees  as  such  and  adverse  claimants  concern- 
ing the  property  acquired  or  claimed  by  the  trustees,  in  the  same  man- 
ner and  to  the  same  extent  only  as  though  bankruptcy  proceedings 
hal  not  been  instituted  and  such  controversies  had  been  between 
the  bankrupts  and  such  adverse  claimants. 

(b.)  Suits  by  the  trustee  shall  only  be  brought  or  prosecuted  in  the 
courts  where  the  bankrupt,  whose  estate  is  being  administered  by 
such  trustee,  might  have  brought  or  prosecuted  them  if  proceedings 
in  bankruptcy  had  not  been  instituted,  unless  by  consent  of  the  pro- 
posed defendant. 

(c.)  The  United  States  circuit  courts  shall  have  concurrent  juris- 
diction with  the  courts  of  bankruptcy,  within  their  respective  terri- 
torial limits,  of  the  offenses  enumerated  in  this  Act. 

The  circuit  court  of  the  United  States  had  jurisdiction  under  the  Act 
of  1841  to  set  aside  a  transfer  that  was  void  under  its  provisions,  and 
to  distribute  the  property  among  parties  having  valid  liens  and  the  gen- 
eral creditors.  McLean  v.  Meline  et  al.,  3  McLean,  199;  16  Fed.  Cas.  282 
(1843). 

Justice  Miller  held  that  after  the  Amendment  of  1874,  if  not  before,  an 
assignee  in  bankruptcy  could  sue  in  the  circuit  courts  of  the  United 
States  to  collect  debts,  without  reference  to  the  amount  claimed.  Payson 
V.  Coffin,  4  Dill.  386;  19  Fed.  Oas.  18. 

It  was  held  under  the  Act  of  186T  that  the  United  .States  circuit  court, 

as  a  court  of  equity,  had  full  jurisdiction  over  a  bill  brought  to  set  aside 

a  transaction  charged  to  be  fraudulent  under  section  35,  and  to  enjoin  the 

.  parties  from  prosecuting  proceedings  in  other  courts  relating  to  such  a 

transaction.    Little  v.  Alexander,  1  Hughes,  171;  15  Fed.  Oas.  601. 

Under  the  Act  of  1867,  the  circuit  court,  at  the  suit  of  the  assignee, 
could  issue  an  injunction  against  the  prosecution  of  an  action  of  trover 
in  a  state  court  against  the  marshal  for  seizing  the  property  of  a  third 
person  under  his  warrant  in  bankruptcy.  Hudson  v.  Schwab  et  al.,  18 
N.  B.  R.  480;  12  Fed.  Cas.  814. 

The  assignee  of  a  bankrupt  who  is  payee  of  a  note  may  sue  in  the 
United  States  circuit  court  to  collect  the  same.  Prltchard  v.  Chandler, 
2  Curt.  488;  19  Fed.  Cas.  1347  (1855). 

A  question  of  the  validity  of  a  certain  lien  on  bankrupt's  property 
which  was  claimed  to  have  been  acquired  by  preference  came  before 
the  court  on  a  petition  and  answer.    The  court  refused  to  decide  it  in 


184  The  Bankeuptcy  Law. 

that  proceeding  and  required  the  petitioner  to  proceed  by  a  WU  in  equity 
or  a  suit  at  law.    In  re  Belew,  4  Ben.  135;  2  Fed.  Cas.  559. 

It  was  stated  by  Judge  AVoodrufE  that  the  practice  in  the  New  York 
circuit  under  the  Act  of  1867  was  to  review  by  petition,  but  that  the 
circuit  court  could  entertain  a  plenary  suit.  Hurst  v.  Teft,  12  Blatchf. 
217;  12  Fed.  Cas.  1044. 

The  circuit  court  will  entertain  a  bill  in  equity  requiring  an  assignee 
in  bankruptcy  to  account  and  pay  dividends  when  that  authority  is  not 
conferred  by  the  Act  upon  the  district  court.  Lucas  et  al.  v.  Morris  et 
al.,  1  Paine,  396;  15  Fed.  Cas.  1063  (1825). 

Under  section  2  of  the  Act  of  1867,  a  circuit  court  in  a  district  other 
than  the  one  in  which  the  decree  of  bankruptcy  was  made,  has  juris- 
diction over  a  cross-bill  filed  by  an  assignee  in  bankruptcy  to  assert  a 
right  to  redeem  mortgaged  property.  Barnard  et  al.  v.  Hartford  P.  F. 
R.  Co.  et  al.,  2  Fed.  Cas.  832. 

A  bankrupt  in  making  his  schedules  conceals,  and,  after  his  discharge, 
fraudulently  conveys  his  property.  A  suit  by  his  assignee  to  set  aside 
such  conveyance  is  not  a  suit  to  annul  the  decree  of  discharge.  Such  suit 
Is,  therefore,  not  required  to  be  brought  in  the  district  court  which 
rendered  the  decree.  The  circuit  court  is  the  proper  tribunal.  Nicholas 
V.  Murray,  5  Saw.  320;  18  Fed.  Cas.  174  (1878). 

The  circuit  court  for  the  district  of  Michigan  held  that  It  could  enter- 
tain a  bill  by  an  assignee  against  several  lien  holders  to  ascertain  the 
amounts  due,  and  sell  all  the  property  free  from  Incumbrances.  Suther- 
land et  al.  V.  Lake  ^Superior  Ship  Canal,  Railroad  &  Iron  Co.  et  al.,  9 
N.  B.  R.  298;  23  Fed.  Cas.  459. 

The  jurisdiction  under  the  Act  of  1867,  which  the  circuit  court  owed  to 
the  fact  that  the  complainant  was  an  assignee  in  bankruptcy,  was  not 
lost  because  he  had  parted  with  all  of  his  title  to  the  property  In  con- 
troversy during  the  pendency  of  the  suit.  Barnard  et  al.  v.  Hartford  P. 
F.  R.  Co.  et  al.,  2  Fed.  Cas.  832. 

Judge  Emmons  held  that  the  decision  of  the  supreme  court  In  Marshall 
V.  Knox,  83  TJ.  S.  551,  does  not  deprive  the  circuit  court  of  its  power  to 
order  all  matters  pending  In  a  state  court  to  be  adjudicated  in  an  original 
suit  subsequently  to  be  commenced  In  such  court  by  an  assignee  in  bank- 
ruptcy. Sutherland  et  al.  v.  Lake  Superior  Ship  Canal,  Railroad  &  Iron 
Co.  et  al.,  9  N.  B.  R.  29S;  23  Fed.  Cas.  459. 

The  circuit  court  was  held  to  have  no  jurisdiction  under  the  Act  of  1867 
over  a  bill  in  equity  by  the  assignee  of  a  bankrupt  firm  against  the  as- 
signee of  one  of  the  partners  to  require  him  to  pay  the  complainant  from 
moneys  remaining  in  his  hands  after  the  individual  creditors  of  the 
partner  were  satisfied.  Stevens  v.  Appleton  et  al.,  4  ClifE.  265;  23  Fed. 
Oas.  6. 

Held,  that  the  circuit  court  had  jurisdiction  of  a  bill  In  equity  by  an 
assignee  in  bankruptcy  against  the  bankrupt  and  another  to  set  aside  a 
conveyance  made  by  the  bankrupt  to  the  other  defendant  and  for  an 
accounting  and  a  discovery.  Versellus  v.  Versellus  et  al.,  9  Blatchf.  189; 
28  Fed.  Cas.  1169. 


CouKTS  AND  Procedure  Thereik.  185 

A  suit  by  an  assignee  In  bankruptcy  In  the  circuit  court  against  the 
banltrupt's  wife  and  a  third  party  for  the  recovery  of  property  alleged 
to  have  been  unlav^fully  transferred  was  sustained  by  the  court  as  to  its 
jurisdiction  on  the  ground  that  the  matter  in  dispute  exceeded  $500,  and 
that  the  suit  was  between  citizens  of  different  states.  Spauldlng  v.  Mc- 
Govern  et  al.,  10  N.  B.  R.  188;  22  Fed.  Oas.  891. 

Where  an  adjudication  was  had  in  Kansas,  and  a  resident  of  Minnesota 
brought  a  suit  in  Indiana  without  leave  of  the  banlirupt  court  to  fore- 
close a  mortgage  given  by  the  bankrupt,  making  the  assignees  In  bank- 
ruptcy parties  defendant,  and  the  assignees  in  bankruptcy  brought  a 
suit  In  the  circuit  court  in  the  district  of  Minnesota  against  the  plaintiff 
In  the  foreclosure  suit  asking  to  have  the  mortgage  declared  void,  and  for 
an  injunction  from  the  further  prosecution  of  the  foreclosure  suit  in 
Indiana,  Judge  Dillon  held  that  the  circuit  court  for  Minnesota  had  no 
bankruptcy  jurisdiction,  and  could  only  exercise  its  ordinary  equity 
powers,  and  accordingly  refused  to  grant  the  Injunction.  Markson  v. 
Heaney,  1  Dill.  497;  16  Fed.  Gas.  769. 

Neither  the  Judiciary  Act  of  1789,  nor  the  Bankrupt  Law  of  1800,  nor 
any  other  law  authorized  a  circuit  court  to  enjoin  proceedings  by  the 
bankrupt  or  his  counsel  In  the  district  court.  Sand's  Case,  1  U.  S.  L.  J. 
15;  21  Fed.  Gas.  333  (1803). 

An  assignee  in  bankruptcy  can  maintain  an  action  for  the  recovery  of 
assets  in  a  circuit  dourt  other  than  that  where  the  bankruptcy  proceed- 
ings are  pending  without  regard  to  citizenship.  So  held  under  the  Act 
of  1867.  Lathrop  v.  Drake,  91  XJ.  S.  516.  (Glearly  not  under  the  present 
law.) 

Under  the  Act  of  1867  the  circuit  court  had  original  concurrent  juris- 
diction with  the  district  court  to  determine  the  validity  of  conveyances, 
and  the  rights  of  the  parties  to  a  fund  received  by  an  assignee  in  bank- 
ruptcy from  the  sale  of  incumbered  property.  Giveen  v.  Smith  et  al., 
1  Hask.  358;  10  Fed.  Gas.  454. 

The  supreme  court  held  in  the  case  cited  that  under  the  Act  of  186T 
an  assignee  In  bankruptcy  could  maintain  an  action  in  a  state  court  to 
recover  assets  of  the  bankrupt.    Olaflin  v.  Houseman,  98  U.  S.  130. 

A  person  claiming  an  Interest  in  property  transferred  to  the  assignee 
could  maintain  an  action  for  the  recovery  of  the  same  in  the  United 
States  circuit  court  without  respect  to  diversity  of  citizenship.  Burbank 
V.  Biglowe,  92  U.  S.  179.    (Otherwise  under  the  present  law). 

The  United  States  circuit  court  has  no  jurisdiction  in  a  suit  brought 
by  a  purchaser  from  an  assignee  in  bankruptcy  to  enjoin  the  sale  of  the 
same  property  under  an  order  of  a  state  court.  Sarge'nt  v.  Helton,  115 
U.  S.  348. 

An  assignee  in  bankruptcy  having  in  possession  property  which  had 
been  levied  upon  by  virtue  of  a  writ  of  attachment  could  maintain  a  bill 
in  equity  in  the  circuit  court  to  remove  the  attachment  as  a  cloud  upon 
the  title,  and  the  circuit  court  could  restrain  the  sale  of  the  property  by 
Injunction.    Chapman  v.  Brewer,  114  U.  S.  158. 


186  The  Bankkttptcy  Law. 

Proceedings  in  bankruptcy  were  pending  against  a  debtor  in  the  eastern 
district  of  New  York.  The  bankrupt  applied  to  the  circuit  court  for  the 
southern  district  to  restrain  proceedings  under  a  judgment  and  execu- 
tion in  a  state  court.  Held,  under  section  720,  K.  S.,  that  the  circuit 
court  had  no  jurisdiction  to  grant  the  injunction.  Tifft  v.  Ironclad  Mfg. 
Co.  et  al.,  16  Blatchf.  48;"  23  Fed.  Cas.  1217. 

The  jurisdiction  of  the  circuit  court  over  a  suit  in  equity  brought  by 
the  assignee  of  a  bankrupt  in  one  state  against  citizens  of  another  state, 
to  recover  a  debt  due  the  bankrupt's  estate,  was  not  conferred  by  the 
Bankrupt  Act  of  1867,  but  by  the  Judiciary  Act  of  1789.  Glndrat  et  al.  v. 
Dane  et  al.,  4  Cliff.  260;  10  Fed.  Cas.  434. 

The  circuit  court  for  the  district  of  Missouri  affirmed  its  jurisdiction 
over  a  suit  brought  by  an  assignee  In  bankruptcy  for  that  district  against 
a  citizen  of  Pennsylvania,  on  the  ground  thai  the  jurisdiction  was  con- 
ferred by  the  Judiciary  Act  of  1789.    Post  v.  Rouse,  19  Fed.  Oas.  1091. 

The  circuit  court  has  jurisdiction  of  all  suits  brought  by  an  assignee 
in  bankruptcy,  or  against  one.  McLean  v.  LaFayette  Bank  et  al.,  3 
McLean,  185;  16  Fed.  Cas.  253  (1843). 

The  district  court,  and  not  the  circuit  court,  has  jurisdiction  of  a  bill 
filed  by  creditors  before  the  appointment  of  an  assignee  to  restrain  the 
holder  of  a  chattel  mortgage  in  possession  from  disposing  of  the  goods 
covered  by  the  mortgage.  Johnson  et  al.  v.  Price,  13  N.  B.  R.  523;  13 
Fed.  Cas.  793. 

Under  the  Act  of  1867  an  assignee  In  bankruptcy  could  bring  a  suit  in 
equity  to  redeem  property  from  a  chattel  mortgage  in  either  the  circuit 
or  district  courts  of  the  United  States.  Foster  et  al.  v.  Ames  et  al.,  1 
Low.  313;  9  Fed.  Oas.  527. 

The  circuit  court  for  Pennsylvania  decided  under  the  Act  of  1867  that 
it  had  no  jurisdiction  of  a  suit  by  an  assignee  in  bankruptcy  appointed 
in  another  district  to  recover  the  amount  of  a  preference  obtained  by  a 
creditor.  Lathrop  v.  Brake  et  al.,  30  Leg.  Int.  141;  14  Fed.  Cas.  1178. 
This  case  was  appealed  to  the  supreme  court,  where  the  decree  of  the 
circuit  court  was  reversed  on  the  proposition  above  stated.  Lathrop  v. 
Drake  et  al.,  91  U.  S.  516. 

Suits  between  the  assignee  and  the  bankrupt,  depending  on  the  status 
of  the  latter,  are  within  the  exclusive  jurisdiction  of  the  district  court; 
but  the  circuit  court  had  jurisdiction,  under  the  Act  of  1867,  of  an  action 
by  the  assignee  against  the  bankrupt  for  property  in  his  possession  that 
he  claims  as  agent  for  a  third  person.  Carr  v.  Gale,  2  Ware,  330;  5  Fed. 
Oas.  118  (1847);  affirmed,  Carr  v.  Gale,  3  W.  &  M.  38;  5  Fed  Cas.  123. 

The  jurisdiction  of  the  circuit  and  district  courts  is  concurrent  as  to 
cases  brought  by  assignees  in  bankruptcy  against  parties  claiming  an 
adverse  interest.  Hallack  et  al.  v.  Trltch,  17  N.  B.  R.  293;  11  Fed  Cas. 
286. 

Circuit  and  district  courts  of  the  United  States  have  full  jurisdiction  in 
equity  to  settle  and  distribute  the  estate  of  the  bankrupt.  Mitchell  v. 
Great  Works  M.  &  M.  Co.,  2  Story,  618;  17  Fed.  Oas.  496  (1843). 


Courts  and  Pkocedure  Therein.  187 

THe  circuit  and  district  courts  of  the  United  States  have  concurrent 
jurisdiction  in  tlie  collection  and  distribution  of  assets  of  a  bankrupt. 
So  held  under  the  Act  of  1841.  McLean  v.  LaFayette  Bank  et  al.,  3 
McLean,  185;  16  Fed.  Cas.  253  (1843). 

[See  notes  to  §§  Sand  11.] 
A'PPEALS    AND   KeVISION. 

§  2J:.  Jurisdiction  of  Appellate  Courts.—  (a.)  The  Supreme 
Court  of  the  United  States,  the  circuit  courts  of  appeals  of  the 'United 
States,  and  the  supreme  courts  of  the  Territories,  in  vacation  in  cham- 
bers and  during  their  respective  terms,  as  now  or  as  they  may  be  hers- 
alter  held,  are  hereby  invested  with  appellate  Jurisdiction  of  contro- 
versies arising  in  bankruptcy  proceedings  from  the  courts  of  bank- 
ruptcy from  wliich  they  have  appellate  jurisdiction  in  other  cases. 
The  Supreme  Court  of  the  United  States  shall  exercise  a  like  juris- 
diction from  courts  of  bankruptcy  not  within  any  organized  circuit 
of  the  United  States  and  from  the  supreme  court  of  the  District  of 
Columbia. 

(b.)  The  several  circuit  courts  of  appeal  shall  have  jurisdiction  in 
equity,  either  interlocutory  or  final,  to  superintend  and  revise  in  mat- 
ter of  law  the  proceedings  of  the  several  inferior  courts  of  bankruptcy 
within  their  jurisdiction.  Such  power  shall  be  exercised  on  due  notice 
and  petition  by  any  party  aggrieved. 

§  25.  Appeals  and  Writs  of  Error. —  (a.)  That  appeals,  as  in 
equity  cases,  may  be  taken  in  bankruptcy  proceedings  from  the  courts 
of  bankruptcy  to  the  circuit  court  of  appeals  of  the  United  States,  and 
to  the  supreme  court  of  the  Territories,  in  the  following  cases,  to  wit, 
(1)  from  a  judgment  adjudging  or  refusing  to  adjudge  the  defendant  a 
bankrupt;  (3)  from  a  judgment  granting  or  denying  a  discharge;  and 
(3)  from  a  judgment  allowing  or  rejecting  a  debt  or  claim  of  five  hun- 
dred dollars  or  over.  Such  appeal  shall  be  taken  within  ten  days  after 
the  judgment  appealed  from  has  been  rendered,  and  may  be  heard  and 
determined  by  the  appellate  court  in  term  or  vacation,  as  the  case 
may  be. 

(b.)  From  any  final  decision  of  a  court  of  appeals,  allowing  or  reject- 
ing a  claim  under  this  Act,  an  appeal  may  be  had  under  such  rules  and 
within  such  time  as  may  be  prescribed  by  the  Supreme  Court  of  the 
United  States,  in  the  following  cases  and  no  other  : 

(1.)  ■\Vbere  the  amount  in  controversy  exceeds  the  sum  of  two  thou- 
sand dollars,  and  the  question  involved  is  one  which  might  have  been 


188  The  Bankeuptcy  Law. 

taken  on  appeal  or  writ  of  error  from  the  highest  coiirt  of  a  state  to 
the  Supreme  Court  of  the  United  States  ;  or 

(2.)  Where  some  Justice  of  the  Supreme  Court  of  the  United  States 
shall  certify  that  in  his  opinion  the  determination  of  the  question 
or  questions  involved  in  the  allowance  or  rejection  of  such  claim  is 
essential  to  a  uniform  construction  of  this  Act  throughout  the  United 
.States. 

(c.)  Trustees  shall  not  be  required  to  give  bond  when  they  take 
appeals  or  sue  out  writs  of  error. 

(d.)  Controversies  may  be  certified  to  the  Supreme  Court  of  the 
United  States  from  other  courts  of  the  United  States,  and  the  former 
court  may  exercise  jurisdiction  thereof  and  issue  writs  of  certiorari 
pursuant  to  the  provisions  of  the  United  States  laws  now  in  force  or 
such  as  may  be  hereafter  enacted. 

Appellate  and  Bervisory  Jurisdiction  and  Practice. 

It  was  held  to  be  fataJ  to  an  appeal  under  the  Act  of  1867,  that  no 
notice  was  given  to  the  assignee  in  bankruptcy,  within  ten  days  after  the 
entry  of  the  decree.    Wood  v.  Bailey,  21  Wall.  640. 

The  time  for  appeal  in  bankruptcy  cannot  be  extended  after  the  period 
for  appeal  has  lapsed.    Judson  v.  Courier  Co.,  25  Fed.  Rep.  705. 

The  right  of  appeal  conferred  by  section  8  of  the  Act  of  1867  cannot 
be  enlarged  by  the  court;  and  where  a  proper  bond  is  not  given,  the 
appeal  will  not  be  allowed.  Benjamin  v.  Hart,  4  Ben.  454;  3.  Fed.  Cas. 
189. 

It  was  held  under  the  Act  of  1867  that  an  appellate  court  obtains  juris- 
diction by  the  filing  and  service  of  the  notice  of  appeal,  and  not  by  the 
filing  of  the  transcript;  also  that  the  time  for  filing  the  transcript  may 
be  extended  by  consent  beyond  the  statutory  time.  Baldwin  v.  Raplee, 
5  N.  B.  K.  19;  2  Fed.  Cas.  526. 

The  supreme  court  sustained  the  action  of  the  circuit  court  in  dis- 
missing an  appeal  to  the  latter  court  which  was  not  entered  at  a  term 
then  in  progress,  within  ten  days  after  it  had  been  taken,  from  a  decision 
of  the  district  court  in  bankruptcy.    Ex  parte  Woollen,  104  U.  S.  300. 

Under  the  Act  of  1867,  the  circuit  court  would  review  an  order  adjudg- 
ing the  petitioner  a  bankrupt  when  all  the  testimony  in  the  district  court . 
on  the  trial  of  the  issue  was  preserved  by  a  bill  of  exceptions;  but  would 
not  reverse  the  lower  court  on  a  question  of  fact,   unless  Its  decision 
was  manifestly  erroneous.    In  re  Pickton,  2  Dill.  54S;  19  Fed.  Oas.  620. 

A  failure  to  file  the  appeal  and  statement  within  ten  days,  by  a  cred- 
itor appealing  from  a  decision  rejecting  his  claim,  was  held  not  to  be 
jurisdictional  under  the  Act  of  1867,  notwithstanding  the  provisions  of 
general  order  number  26.  Fellows  v.  Burnap,  14  Blatchf.  63;  8  Fed. 
Cas.  1131. 


COUETS   AND    PkOCEDUEE    Ti-IEREIN.'  189 

Under  the  Act  of  1867  the  petitioning  creditor  could  not  appeal  to  the 
circuit  court  from  an  order  of  the  district  court  vacating  an  adjudica- 
tion made  at  the  instance  of  another  creditor.  In  re  Hall,  1  Dill.  585;  11 
Fed.  Gas.  199. 

The  opinion  was  expressed  that  an  order  made  by  the  district  court  in 
the  exercise  of  summary  jurisdiction  should  not  be  reviewed  by  an  ap- 
peal under  section  8  of  the  Act  of  1867.  In  re  Clark,  9  Blatchf.  372;  5 
Fed.  Cas.  811. 

Where  the  district  court  had  erroneously  ordered  a  set-ofC  tO'  be  allowed, 
held,  under  the  Act  of  1867  (section  4986,  R.  S.),  that  the  circuit  court 
had  jurisdiction  to  set  aside  the  order.  Wilson  v.  Nat.  Bank,  S  Fed.  Rep. 
391. 

In  an  oral  opinion.  Justice  Miller  said  that  section  8  of  the  Act  of 
1867  provided  for  a  writ  of  error  and  for  two  classes  of  appeals.  One 
class  was  appeals  in  equity  cases  proper,  of  which  the  district  was 
given  jurisdiction  in  broad  and  plain  terms  by  the  first  and  second 
sections  of  the  Act.  The  other  class  related  to  controversies  between 
creditors  and  the  assignee  in  relation  to  the  allowance  and  rejection  of 
claims;  the  procedure  of  appeal  in  this  class,  when  taken  by  the  cred- 
itor, being  further  regulated  by  section  24.  This  provision  as  to  appeal 
is  anomalous,  since  the  general  legislation  by  congress  distinguishes 
between  writs  of  error  and  appeals.  Hawkins  v.  First  Nat.  Bank,  1 
Dill.  453;  11  Fed.  Cas.  880. 

An  appellate  court  will  not  review  proceedings  of  assignees  and 
registers  unless  presented  to  and  passed  upon  by  the  district  court.  Ala. 
&  O.  R.  R.  Co.  V.  Jones,  7  N.  B.  R.  145;  1  Fed.  Cas.  281. 

Only  parties  to  proceedings  in  bankruptcy  can  appeal.    Ibid. 

An  objection  that  the  assignee  brought  a  suit  without  an  order  from 
the  court  of  bankruptcy  will  not  be  heard  for  the  first  time  In  the  ap- 
pellate court.    Hallack  et  al.  v.  Tritch,  17  N.  B.  R.  293;  11  Fed.  Cas.  286. 

The  Act  of  1867  (section  4980,  R.  S.)  authorizes  an  appeal  to  the  circuit 
court  from  a  decision  in  a  proceeding  by  the  assignee  in  bankruptcy 
to  expunge  the  proof  of  an  alleged  debt.  Morris  et  al.  v.  Brush,  2  Woods, 
354;  17  Fed.  Cas.  810. 

It  was  held  to  be  doubtful  under  the  Act  of  1841,  whether  the  granting 
or  refusing  to  grant  a  motion  for  a  new  trial  could  be  adjourned  into 
the  circuit  court;  but  Judge  Story  held  that  if  it  could  be  all  the  evi- 
dence must  be  included  in  the  record.  In  re  Marsh,  6  Law  Rep.  67;  16 
Fed.  Cas.  790. 

If  the  debt  claimed  exceeds  $500,  the  error  lies  to  the  circuit  court 
on  exceptions  taken  on  a  trial  in  the  district  court  during  proceedings 
for  Involuntary  bankruptcy.  So  held  under  section  41  of  the  Act  of 
1867.  And  the  circuit  court  may  compel  the  district  court  by  mandamus 
to  proceed  to  judgment  in  such  a  case.  Insurance  Co.  v.  Comstock,  16 
Wall.  259. 

Under  the  Act  of  1S41  it  was  held  that  the  district  judge  could  not 
sit  in  the  circuit  court  on  questions  adjourned  from  the  district  to  the 


190  The  Bankeuptct  Law. 

circuit  court,  and  that  the  questions  adjourned  could  not  be  talien  to  the 
supreme  court  by  certificate  of  division,  nor  by  appeal  or  writ  of  error. 
Nelson  v.  Carlan,  1  How.  265. 

A  bill  will  not  be  entertained  in  the  circuit  court  to  reverse  an  order 
allowing  a  claim  which  has  been  twice  contested  before  the  district 
court.    Bank  v.  Cooper,  20  Wall.  171. 

A  petition  by  an  assignee  in  banliruptcy  asking  that  the  validity  of 
certain  alleged  dealings  be  determined  and  that  the  estate  be  distributed 
was  held  to  be  a  case  in  equity  within  the  meaning  of  section  8  of  the 
Act  of  1867.  It  is  not  a  case  within  the  supervisory  power  of  the  cir- 
cuit court,  but  may  be  appealed.    Stickney  v.  Wilt,  23-  Wall.  150. 

Held,  that  the  review  of  an  interlocutory  decree  of  the  district  court  in 
a  suit  to  set  aside  a  preference  should  be  secured  by  appeal  under 
section  8  of  the  Act  of  1867,  and  not  under  section  2.  Warren  et  al.  T. 
Tenth  Nat.  Bank  et  al.,  9  Blatchf.  193;  29  Fed.  Cas.  286. 

Under  the  Act  of  1867  no  appeal  lies  to  the  circuit  court  from  an  ad- 
judication of  bankruptcy  by  the   district  court    In   re   O'Brien,   6  Int  • 
Rev.  Rec.  182;  18  Fed.  Cas.  521  (1873). 

All  questions  of  law  which  arise  in  the  progress  of  a  petition  in  bank- 
ruptcy may  be  reviewed  by  the  circuit  court,  but  only  on  writ  of  error 
after  final  judgment.  Oregon  Bulletin  Printing  &  Pub.  Co.,  8  Chi.  Leg. 
News,  143;  18  Fed.  Cas.  780. 

The  action  terminates  when  the  debtor  is  adjudged  bankrupt.  The 
case  in  the  district  court  is  then  at  an  end,  and  may  be  reviewed  by  the 
circuit  court  in  the  manner  prescribed  by  law,  and  if  tried  by  a  jury  can 
only  be  reviewed  upon  a  writ  of  error.    Ibid. 

Technical  objections  to  pleadings  cannot  be  taken  for  the  first  time 
in  the  appellate  court.    Babbitt  v.  Burgess,  2  Dill.  169;  2  Fed.  Cas.  2S0. 

Held,  that  under  section  4986,  R.  S.,  no  particular  form  of  proceeding 
was  required  to  take  the  case  to  the  circuit  court  for  review,  and  a 
writ  of  error  will  be  sufficient  to  give  the  circuit  court  jurisdiction. 
Cleveland  Ins.  Co.  v.  Globe  Ins.  Co.,  98  TJ.  S.  36a 

The  circuit  court  will  not  reverse  the  judgment  of  the  district  court 
in  bankruptcy  for  irregularities.  Its  revisory  power  is  limited  to  what 
has  been  determined  or  done.    Huntington  v.  Saunders,  64  Fed.  Rep.  476. 

Election  or  appointment  of  assignees  is  subject  to  the  approval  of  the 
district  judge,  and  it  is  not  in  the  contemplation  of  the  Bankrupt  Act 
that  these  proceedings  shall  be  reviewed  in  the  circuit  court.  Woods  v. 
Buckewell,  2  Dill.  38;  30  Fed.  Cas.  531  (1872). 

The  statute  and  the  rules  prescribing  no  time  within  which  application 
for  review  must  be  filed,  it  was  held  that  it  must  be  in  a  reasonable  time. 
Eleven  months  held  unreasonable,  unless  excuse  made  for  the  delay.  In 
re  Beck,  31  Fed.  Rep.  554. 

Held,  under  the  Act  of  1841,  that  the  authority  of  a  district  judge  to 
adjourn  a  question  arising  in  bankruptcy  into  the  circuit  court  was  not 
barred  by  the  fact  that  it  had  given  an  opinion  on  such  question,  when 
no  final  order  or  decree  had  been  entered.    In  re  Hyde,  6  Fed.  Rep.  869. 


Courts  and  Pboceduee  Thekeik.  191 

The  circuit  court  refused  on  a  petition  of  review  to  consider  tlie  post- 
ponement by  the  register  of  the  day  for  the  creditors  to  show  cause 
why  the  banlirupt  should  not  be  discharged,  on  the  ground  that  It  was  a 
question  of  practice  to  be  determined  by  the  district  court.  In  re  Robin- 
son, 6  Blatchf.  253;  20  Fed.  Oas.  978. 

A  circuit  judge,  who  had  proved  his  claim  and  thereafter  sold  it  and 
received  the  consideration,  was  held  not  to  be  disqualified  from  deciding 
a  petition  for  the  review  of  an  order  by  the  district  court  on  the  allow- 
ance of  a  claim.    In  re  Sime  et  al.,  2  Saw.  320;  22  Fed.  Oas.  145. 

The  assignee,  alleging  that  the  bankrupt  withheld  certain  money, 
asked  for  an  order  that  he  pay  it  over.  The  bankrupt  swore  that  the 
money  had  already  been  expended  before  the  adjudication,  and  the 
prayer  of  the  assignee  was  thereupon  denied.  On  review,  the  circuit 
court  said  that  it  would  require  a  very  clear  case  to  justify  the  review- 
ing court  to  set  aside  the  decision  of  the  district  court  on  a  question  of 
fact.    In  re  Mooney  et  al.,  14  Blatchf.  204;  17  Fed.  Oas.  659. 

The  circuit  court,  in  reviewing  proceedings  in  the  district  court  on  a 
writ  of  error,  will  accept  the  findings  of  fact  made  by  a  referee  as 
conclusive,  and  only  review  conclusions  of  law  embraced  in  exceptions 
filed  in  the  lower  .court.  Sicard  v.  Buffalo,  N.  Y.  &  P.  R.  Oo.,  15  Blatchf. 
525;  22  Fed.  Oas.  64. 

Under  the  Act  of  1867,  It  was  held  in  the  sixth  circuit  that  upon  a 
demurrer  to  a  petition  for  review,  the  petition  will  be  taken  as  true,  and 
the  appeal  determined  accordingly.  Onrran  et  al.  v.  Munger  et  al.,  6  N. 
B.  R.  33;  6  Fed.  Oas.  982. 

Five  months  after  the  discharge  of  the  bankrupt,  a  creditor  whose 
claim  amounted  to  2  per  cent,  of  the  aggregate  indebtedness  of  the 
bankrupt  filed  a  petition  for  review.  In  the  meantime,  the  bankrupt  had 
engaged  in  new  business.  It  was  held  that  the  delay  was  unreasonable, 
and  th'e  petition  for  review  was  dismissed.  In  re  Murray  et  al.,  14 
Blatchf.    43;  17  Fed.  Oas.  1040. 

A  petition  for  revision  should  set  forth  specifically  the  alleged  error 
or  errors  of  the  court  below  that  the  petitioner  relies  upon.  Llttlefield  v. 
Del.  &  H.  Canal  Oo.,  3  Biss.  371;  15  Fed.  Gas.  621. 

The  power  of  the  circuit  court  over  proceedings  of  the  district  court 
In  bankruptcy,  under  the  Act  of  1867,  was  supervisory,  and  it  would 
not  hear  additional  testimony  on  a  petition  for  review.  In  re  Great 
Western  Tel.  Oo.,  5  Biss.  1059;  10  Fed.  Oas.  1053. 

The  supervisory  jurisdiction  conferred  by  the  Act  of  1867  on  circuit 
courts  is  restricted  to  the  court  for  the  district  where  the  proceedings  in 
bankruptcy  are  pending.  Jobbins  v.  Montague  et  al.,  6  N.  E.  E.  509;  13 
Fed.  Oas.  648. 

A  bill  of  review  can  only  be  sustained  on  the  ground  of  errors  that 
appeared  on  the  record  which,  in  proceedings  In  bankruptcy,  does  not 
Include  the  evidence.  Barker  v.  Barker's  Assignee,  2  Woods,  241;  2  Fed. 
Gas.  809. 


193  The  Bankeuptoy  Law. 

The  superintendence  given  to  the  circuit  court  in  section  2  of  the  Act 
of  1867  is  revisory  in  its  nature,  and  there  was  no  intention  to  give  to 
parties  authority  to  apply  to  that  tribunal  for  original  orders  in  the 
nature  of  a  specific  execution  of  the  decrees  of  a  district  court.  In  re 
Bininger  et  al.,  7  Blatchf.  165;  3  Fed.  Cas.  410. 

Where  it  was  desired,  under  the  Act  of  1867,  to  secure  the  opinion  of 
the  circuit  court  on  a  question  arising  in  the  course  of  proceedings  in 
bankruptcy,  the  proper  practice  was  by  a  petition  for  a  review,  and  uot 
by  an  appeal.    In  re  Reed,  2  N.  B.  R.  9;  20  Fed.  Oas.  417. 

It  was  held,  under  the  Act  of  1867,  that  section  2  conferred  on  the  cir- 
cuit court  complete  control  over  proceedings,  and  any  separate  branch  of 
it,  or  any  particular  question  arising,  and  that  it  might  exercise  this 
jurisdiction  by  bill,  petition,  writ  of  error,  writ  of  certiorari  or  other 
appropriate  process,  though  a  proceeding  by  petition  was  held  to  be 
preferred.     Ruddick  v.  Billings,  Woolw.  330;  20  Fed.  Cas.  1306. 

An  objection  to  a  composition  will  not  be  considered  on  review  in  the 
circuit  court,  unless  made  in  the  district  court.  In  re  Wilson,  16  Blatchf. 
112;  30  Fed.  Cas.  93  (1879). 

The  circuit  court  will  not  on  review  interfere  with  a  decree  of  the  dis- 
trict court,  in  composition  proceedings,  in  the  matter  of  the  percentage 
accepted  by  the  creditors.    In  re  Joseph,  24  Fed.  Rep.  137. 

The  court  refused  to  decide  abstract  questions  certified  at  the  instance 
of  a  person  who  was  not  a  party  to  the  proceedings.  In  re  Haskell,  4 
N.  B.  R.  558;  11.  Fed.  Cas.  770. 

Where  an  assignee  or  a  creditor  is  driven  to  a  bill  in  equity  or  an 
action  at  law,  the  circuit  court  has  no  supervisory  jurisdiction,  nor  has 
it  such  jurisdiction  in  the  matter  of  the  rejection  or  allowance  of  claims 
in  bankruptcy.  Such  cases  can  only  be  taken  up  on  writ  of  error  or 
appeal.  York's  Case,  1  Abb.  (U.  S.)  508;  4  N.  B.  R.  479;  30  Fed.  Cas.  814 
(1870). 

Construing  the  Act  of  1867  (section  4984,  R.  S.),  Judge  Dillon  held  that 
where  a  creditor  appeals  from  the  decision  of  the  district  court  disallow- 
ing a  part  of  his  claim,  he  must  file  a  declaration  at  law,  and  the  issues 
must  then  be  joined,  and  the  case  tried,  in  the  same  way  as  a  case  at 
law  originally  commenced  in  the  circuit  court.  Stillwell  v.  Walker,  17 
N.  B.  R.  569;  23  Fed.  Gas.  93. 

Where  an  involuntary  bankrupt  filed  a  petition  in  the  district  court  for 
a  review  of  the  record,  it  was  decided  to  be  a  part  of  the  original  pro- 
ceedings, and  not  a  bill  to  impeach  the  adjudication  for  fraud.  Also  that 
it  could  not  be  taken  to  the  circuit  court  by  appeal,  but  only  under  the 
supervisory  power  conferred  by  section  2  of  the  Act  of  1867.  Sandusky 
V.  National  Bank,  23  Wall.  289. 

The  circuit  court  would  not  entertain  an  appeal  under  the  second  sec- 
tion of  the  Act  of  1867  from  an  interlocutory  decree  made  by  the  district 
court  in  a  suit  in  equity  by  an  assignee  in  bankruptcy  against  a  person 
claiming  an  adverse  interest.  Clark  v.  Iselin,  9  Blatchf.  196;  5  Fed.  Oas, 
880. 


Courts  and  Proceduee  Theeeik.  193 

It  was  held  that  a  petition  for  a  review  under  section  2  of  the  Act  of 
1867  must  set  forth  distinctly  the  ruling  of  the  district  court  that  Is  sought 
to  be  reviewed.    In  re  Sutherland,  2  Biss.  405;  23  Fed.  Oas.  452. 

Held,  under  the  Act  of  1867,  that  any  creditor  having  a  lien  upon  the 
banlirupt's  property  could  Involie  the  supervisory  jurisdiction  of  the  court 
for  a  review  of  any  decree  affecting  his  rights.  In  re  Taliafero,  3  Hughes, 
422;  23  Fed.  Cas.  674. 

Held,  under  the  Act  of  1867,  section  2,  that  an  adjudication  of  hanls- 
ruptcy  may  be  reviewed  by  the  circuit  court  or  judge  at  any  place  within 
the  circuit,  either  within  or  without  the  district  where  the  proceedings  in 
bankruptcy  are  pending.  Thornhill  et  al.  v.  Banli  of  Louisiana,  3  N.  B. 
R.  435;  23  Fed.  Cas.  1135;  s.  c,  1  Woods,  1;  23  Fed.  Gas.  1139. 

In  a  suit  brought  by  an  assignee  in  banliruptcy  to  recover  property 
alleged  to  have  been  unlawfully  transferred, 'the  referee  reported  certain 
findings.  No  exception  was  made  to  the  report.  The  defendant  sued  out 
a  writ  of  error  from  the  circuit  court,  but  the  case  contained  exceptions 
which  embraced  only  proceedings  prior  to  the  report  of  the  referee.  Held, 
that  the  referee's  findings  of  fact  could  not  be  reviewed.  Tyler  v.  Ange- 
vine,  15  Blatchf.  536;  24  Fed.  Oas.  458. 

Held,  under  the  Act  of  1867,  that  the  circuit  court  could  review  a  reso- 
lution by  the  creditors  of  a  banlirupt  accepting  a  certain  percentage  of 
their  claims,  but  the  supervisory  power  of  the  court  would  only  be  ex- 
ercised as  to  assignments  of  error  set  forth  in  the  petition.  In  re  South 
Boston  Iron  Co.,  4  Cliff.  343;  22  Fed.  Cas.  812. 

Held,  under  the  Act  of  1841,  that  the  circuit  courts  of  the  United  States 
could  upon  a  sufficient  showing  grant  new  trials  in  criminal  cases  arising 
under  the  Bankrupt  Act.  U.  S.  v.  Conner,  3  McLean,  573;  25  Fed.  Oas. 
595. 

The  circuit  court  refused,  under  section  2  of  the  Act  of  1867,  to  enter- 
tain a  petition  to  review  the  decision  of  the  district  court  allowing  a 
claim  on  the  ground  that  the  Act  contained  other  provisions  for  the 
review  of  such  orders.  In  re  Troy  Woolen  Co.,  9  Blatchf.  191;  24  Fed. 
Cas.  244. 

Appeals  to  the  Supreme  Coiirt. 

Where  the  circuit  court  has  affirmed  a  decree  of  discharge,  an  appeal 
will  not  lie  to  the  supreme  court,  notwithstanding  the  debt  of  the  opposing 
creditor  exceeds  $2,000.    Colt  v.  Robinson,  19  Wall.  274. 

The  supreme  court  refused  to  review  orders  determining  the  priority  of 
certain  claims  to  the  bankrupt's  estate  that  were  first  heard  before  the 
register,  and  then  taken  to  the  district  court,  and  thence  by  appeal  to  the 
circuit  court.    Hall  v.  Allen,  12  Wall.  452. 

Under  the  Act  of  1867  the  supreme  court  had  no  jurisdiction  by  appeal 
or  writ  of  error  over  a  decision  of  the  circuit  court  in  the  exercise  of  its 
supervisory  jurisdiction.    Sandusky  v.  National  Bank,  23  Wall.  289. 

Under  the  Act  of  1867  the  supreme  court  refused  to  review  the  action 
of  the  circuit  court  in  the  exercise  of  its  supervisory  jurisdiction  over  an 
adjudication  in  bankruptcy.  Cleveland  Ins.  Co.  v.  Globe  Ins.  Co.,  98  U. 
S.  366. 

13 


194  The  Bankettptcy  Law.' 

A  Judgment  by  the  circuit  court  on  an  appeal  from  an  order  of  the 
district  court  In  bankruptcy  rejecting  claims  offered  by  an  alleged  cred- 
itor is  not  reviewable  in  the  supreme  court.  Wiswall  v.  Campbell,  93  U.  S. 
347;  Leggett  v.  Allen,  104  id.  741. 

In  the  cases  cited  it  was  decided  that  an  appeal  does  not  lie  to  the 
supreme  court  from  a  decree  of  the  circuit  court  exercising  its  super- 
visory Jurisdiction  under  section  2  of  the  Act  of  1867.  Hall  v.  Allen,  12 
Wall.  452;  Morgan  v.  Thornhill,  11  id.  65;  Mead  v.  Thompson,  15  id.  635; 
Sandusky  v.  Nat.  Bank,  23  id.  289;  Connell  v.  Crane,  94  U.  S.  441;  Hill  v. 
Thompson,  id.  322;  Minick  v.  Coleman,  95  id.  266;  Milner  v.  Meek,  id.  252. 

The  supreme  court  entertained  an  appeal  from  the  supreme  court  of  the 
District  of  Columbia  from  a  proceeding  disposing  of  a  claim  under  section 
1  of  the  Act  of  1867.    Smith  v.  Mason,  14  Wall.  419. 

The  supreme  court  has  Jurisdiction  of  an  appeal  from  a  decree  of  the 
circuit  court  on  a  bill  in  equity  filed  in  the  district  court  by  assignees 
against  creditors  of  the  bankrupt  for  the  sale  of  his  lands.  Morgan  v. 
Thornhill,  11  Wall.  65. 

The  supreme  court  held  that  it  has  no  power  of  revision  over  the 
decrees  of  the  district  courts  as  courts  of  bankruptcy.  Ex  parte  Christy, 
3  How.  292. 

Where  the  highest  court  of  a  state  has  rendered  the  decision  upon  a 
proceeding  for  perpetual  injunction  against  the  collection  of  a  Judgment 
obtained  in  a  court  of  the  state  on  the  ground  of  the  discharge  of  the 
Judgment  debtor  in  bankruptcy,  a  federal  question  is  raised  which  is 
subject  to  review  by  the  supreme  court  of  the  United  States.  Palmer  v. 
Hussey,  119  U.  S.  96. 

In  the  case  cited,  the  supreme  court  entertained  Jurisdiction  of  an 
appeal  from  a  decision  by  the  highest  court  of  the  state  on  a  motion  to 
enjoin  the  collection  of  a  Judgment  of  a  state  court  on  account  of  the 
discharge  of  the  defendants  In  bankruptcy,  holding  that  It  raised  a  federal 
question.    Ibid. 

Justice  Davis  held  under  the  Law  of  1867  that  an  order  made  by  the 
circuit  court  in  the  exercise  of  its  supervisory  Jurisdiction  of  bankrupt 
proceedings  may  be  reviewed  on  appeal  by  the  supreme  court.  In  re  Fox 
et  al.,  8*  Chi.  Leg.  News,  313;  9  Fed.  Cas.  623.  On  appeal  to  the  supreme 
court  of  the  United  States,  this  decision  was  reversed,  and  the  appeal  was 
dismissed.    Conro  v.  Orane,  94  U.  S.  441. 

Aebiteation. 

§  36.  Arbitration  of  Controversies.—  (a.)  The  trustee  may, 
pursnant  to  the  direction  of  the  court,  submit  to  arbitration  any  con- 
Iroversy  arising  in  the  settlement  of  the  estate. 

(b.)'  Three  arbitrators  shall  be  chosen  by  mutual  consent,  or  one  by 
the  trustee,  one  by  the  other  party  to  the  controversy,  and  the  third  by 
the  two  so  chosen,  or  if  they  fail  to  agree  in  five  days  after  their  ap- 
pointment the  court  shall  appoint  the  third  arbitrator. 


COUKTS  AND   PrOCEDUBB   THEREIN.  195 

(e.)  The  i^Titten  finding  of  the  arbitrators,  or  a  majority  of  thenj, 
as  to  the  issues  presented,  may  be  filed  in  court  and  shall  have  like 
force  and  effect  as  the  verdict  of  a  jury. 

It  was  decided  under  the  Act  of  1867,  that  after  the  commencement  of 
proceedings,  a  creditor  and  the  bankrupt  could  not  submit  to  arbitration 
the  question  what  amount  was  due  to  the  creditor.  In  re  Ford  et  al.,  18 
N.  B.  K.  426;  9  Fed.  Gas.  425. 

COMPHOMISES. 

§  27.  Compromises. —  (a.)  The  trustee  may,  with  the  approval  of 
the  court,  compromise  any  controversy  arising  in  the  administration 
of  the  estate  upon  such  terms  as  he  may  deem  for  the  best  interests 
of  the  estate. 

An  order  of  the  bankrupt  court  approving  a  compromise  by  assignee, 
entered  on  ex  parte  application  of  the  assignee,  does  not  bind  the  other 
party.    Section  5074,  R.  S.    DufC  v.  Hopkins,  39  Fed.  Rep.  599. 

An  assignee  In  bankruptcy  may  compromise  a  claim  that  depends  upon 
the  uncertainties  of  litigation;  but  only  upon  receiving  a  pro  rata  share. 
In  re  Furbish,  2  Hask.  120;  9  Fed.  Gas.  1007. 

The  district  court  vacated  an  order  authorizing  the  surrender  of  certain 
life  insurance  policies  to  a  creditor  to  whom  they  had  been  pledged  in 
satisfaction  of  a  secured  debt  upon  a  showing  that  the  order  had  been 
procured  by  misrepresentation  of  material  facts.  In  re  Hoole,  3  Fed.  Rep. 
496. 

In  the  case  cited  the  court  considered  and  construed  the  general  orders 
under  the  Act  of  1867  relating  to  compromises.    Ibid. 

The  circuit  court  decided  under  the  Act  of  1867  that  the  district  court 
could  not  authorize  the  assignee  to  compound  all  doubtful  claims  with  the 
consent  and  approbation  of  a  committee  of  creditors.  In  re  Dlbblee,  3 
Ben.  354;  7  Fed.  Oas.  657. 

Publication  of  N"otioes. 

§  28.  Designation  of  Newspapers. —  (a.)  Courts  of  bankruptcy 
shall  by  order  designate  a  newspaper  published  within  their  respective 
territorial  districts,  and  in  the  county  in  which  the  bankrupt  resides 
or  the  major  part  of  his  property  is  situated,  in  which  notices  required 
to  be  published  by  this  Act  and  orders  which  the  court  may  direct  to 
be  published  shall  be  inserted.  Any  court  may  in  a  particular  case, 
for  the  convenience  of  parties  in  interest,  designate  some  additional 
newspaper  in  which  notices  and  orders  in  such  case  shall  be  published. 


196  The  Bankeuptot  Law. 

Offenses. 
§  39.  Offenses.—  (a.)  A  person  shall  be  punished,  by  imprisonment 
lor  a  period  not  to  exceed  five  years,  upon  conviction  of  the  offense  of 
having  knowingly  and  fraudulently  appropriated  to  his  own  use, 
embezzled,  spent,  or  unlawfully  transferred  any  property  or  secreted 
or  destroyed  any  document  belonging  to  a  bankrupt  estate  which  came 
into  his  charge  as  trustee. 

(b.)  A  person  shall  be  punished,  by  imprisonment  for  a  period  not 
to  exceed  two  years,  upon  conviction  of  the  offense  of  having  know- 
ingly and  fraudulently  (1)  concealed  while  a  bankrupt,  or  after  his 
discharge,  from  his  trustee  any  of  the  property  belonging  to  his  estate 
in  bankruptcy;  or  (2)  made  a  false  oath  or  account  in,  or  in  relation 
to,  any  proceeding  in  bankruptcy;  (3)  presented  under  oath  any  false 
claim  for  proof  against  the  estate  of  a  bankrupt,  or  used  any  such  claim 
in  composition  personally  or  by  agent,  proxy,  or  attorney,  or  as  'agent, 
proxy,  or  attorney;  or  (4)  received  any  naaterial  amount  of  property 
from  a  bankrupt  after  the  filing  of  the  petition,  with  intent  to  defeat 
this  Act;  or  (5)  extorted  or  attempted  to  extort  any  money  or  property 
from  any  person  as  a  consideration  for  acting  or  forbearing  to  act  in 
bankruptcy  proceedings. 

(c.)  A  person  shall  be  punished  by  fine,  not  to  exceed  five  hundred 
dollars,  and  forfeit  his  office,  and  the  same  shall  thereupon  become 
vacant,  upon  conviction  of  the  offense  of  having  knowingly  (1)  acted 
as  a  referee  in  a  ease  in  which  he  is  directly  or  indirectly  interested; 
or  (8)  purchased,  while  a  referee,  directly  or  indirectly,  any  property 
of  the  estate  in  bankruptcy  of  which  he  is  referee;  or  (3)  refused,  while 
a  referee  or  trustee,  to  permit  a  reasonable  opportunity  for  the  inspec- 
tion of  the  accounts  relating  to  the  affairs  of,  and  the  papers  and 
records  of,  estates  in  his  charge  by  parties  in  interest  when  directed  by 
tlie  court  so  to  do. 

(d.)  A  person  shall  not  be  prosecuted  for  any  offense  arising  under 
this  Act  unless  the  indictment  is  found  or  the  information  is  filed  in 
court  within  one  year  after  the  commission  of  the  offense. 

The  sufficiency  of  an  indictment  under  section  44  of  the  Act  of  1867  is 
considered  in  the  case  cited.    U.  S.  v.  Crane,  3  Oliff.  211;  25  Fed.  Gas.  689. 

It  was  held  not  to  be  necessary  that  an  Indictment  for  perjury  by  a 
petitioner  in  bankruptcy  should  set  out  the  petition  at  length.  U.  S.  v. 
Deming,  4  McLean,  3;  25  Fed.  Oas.  816  (1845). 

Held,  that  a  prosecution  under  subdivision  6  of  section  5132,  R.  S. 
(Bankrupt  Act  of  1867),  could  be  based  on  an  information,  the  crime  not 


Courts  and  Pkooeduee  Therein.  197 

Tieing  Infamous  within  the  meaning  of  the  fifth  amendment  to  the  Con- 
stitution.   U.  S.  V.  Block,  4  Saw.  211;  2-i  Fed.  Cas.  1174. 

An  indictment  under  section  44  of  the  Act  of  1867  was  held  to  be  in- 
sufficient where  it  did  not  name  the  court,  or  the  time,  or  the  place  where 
the  proceedings  in  bankruptcy  were  instituted.  U.  S.  v.  Latorre,  8  Blatchf. 
134;  26  Fed.  Cas.  872. 

It  was  held  that,  after  the  amendment  of  1874,  a  court  had  jurisdiction 
to  try  an  indictment  under  section  51S2,  R.  S.  (Act  of  1867),  before  an 
adjudication  was  had.  It  was  not  necessary  that  an  indictment  under 
section  5132,  R.  S.,  should  charge  an  intent  to  defraud  creditors  generally, 
or  contain  a  negative  averment  to  the  effect  that  the  defendant  was  not 
"  carrying  on  business  and  dealing  in  the  ordinary  course  of  trade."  U.  S. 
T.  Myers,  16  N.  B.  R.  3S7;  27  Fed.  Cas.  49. 

Referring  to  an  indictment  under  section  44  of  the  Act  of  1867,  Judge 
Miller  said  that  all  matters  necessary  to  constitute  the  offense  must  be 
pleaded.  "  It  is  not  sufficient  to  aver  that  proceedings  in  bankruptcy  were 
duly  commenced.  It  must  be  pleaded  and  proven  that  the  petition  in 
bankruptcy  was  presented  to  the  district  court  by  a  certain  creditor, 
naming  him,  and  allege  the  amount  of  such  petitioning  creditor's  claim, 
and  the  alleged  cause  of  bankruptcy,  and  the  adjudication  of  bankruptcy, 
it  must  appear  affirmatively  that  the  creditor  had  a  right  under  the  law 
to  prosecute  proceedings  in  bankruptcy.  The  amount  of  his  debt  must 
appear,  otherwise  the  court  would  liave  no  jurisdiction.  *  *  *  The 
description  of  the  goods  should  be  as  definite  as  in  a  declaration  in  trover. 
The  word  'feloniously'  should  be  omitted."  U.  S.  v.  Prescott,  2  Biss. 
325;  27  Fed.  Cas.  614. 

The  execution  of  a  chattel  mortgage  by  a  debtor  was  held  to  be  a  dis- 
position of  the  property  out  of  the  usual  course  of  business  under  the 
criminal  provisions  of  the  Act  of  1867.  TJ.  S.  v.  Block,  4  Saw.  211;  24 
Fed.  Cas.  1174. 

A  retail  dealer  who  bought  a  large  quantity  of  goods  ostensibly  to  re- 
plenish his  stock,  but  sold  them  at  wholesale  at  a  sacrifice,  was  held  to  be 
guilty  under  section  44  of  the  Act  of  1867.  U.  S.  v.  Frank,  2  Biss.  263;  25 
Fed.  Cas.  1205. 

On  the  facts  of  the  case,  the  defendant  was  held  to  answer  under  sec- 
tion 44  of  the  Act  of  1867.  U.  S.  v.  Geary,  4  N.  B.  K.  534;  25  Fed.  Cas. 
1272. 

Under  sections  1  and  7  of  the  Act  of  18il  an  intentional  omission  of  a 
part  of  the  bankrupt's  property  In  a  verified  schedule  was  held  to  be 
perjury.    U.  S.  v.  Nichols,  4  McLean,  23;  27  Fed.  Cas.  151  (1845). 

Persons  other  than  the  bankrupt  may  conspire  with  the  latter  so  as  to 
constitute  an  offense  under  the  Act  of  1867  (sections  5134,  5440,  B.  S.). 
V.  S.  V.  Bayer  et  al.,  4  Dill.  407;  24  Fed.  Gas.  1046. 

Judge  Dillon  expressed  the  opinion  that  under  the  Act  of  1867  (section 
5132,  R.  S.),  a  person  who  procures  the  bankrupt  to  commit  the  acts 
therein  made  criminal,  is  subject  to  indictment.    Ibid. 


1S8  The  Bankbuptoy  Law. 

The  bankrupt  could  be  convicted  of  concealing  assets  from  the  assignee 
under  the  Act  of  1867  without  proof  of  a  demand  by  the  assignee.  V.  S. 
V.  Smith,  13  N,  B.  R.  61;  27  Fed.  Oas.  1170. 

The  defendants  were  charged  with  a  conspiracy  to  have  a  bankrupt 
falsely  pretend  that  the  proceeds  of  a  mortgage  which  he  had  given  had 
been  stolen.  The  fact  was  held  to  constitute  an  offense  under  the  Act  of 
1867  (section  5440,  B.  S.).    U.  S.  v.  Swett  et  al.,  2  Hask.  310;  28  Fed.  Cas.  8. 

The  character  of  proof  in  criminal  cases  under  the  Act  of  1867  Is  dis- 
cussed in  the  case  cited.    XJ.  S.  v.  Penn,  13  N.  B.  R.  464;  27  Fed.  Oas.  490. 

The  repeal  of  the  bankrupt  law  of  1800  was  held  by  Justice  Washington 
to  be  a  bar  to  a  prosecution  under  that  law.  U.  S.  v.  Passmore,  4  Dall. 
372;  27  Fed.  Oas.  458  (1804). 

Evidence  given  by  a  bankrupt  on  a  compulsory  examination  cannot  be 
used  against  him  on  a  criminal  proceeding.  U.  S.  v.  Prescott,  2  Dill. 
405;  27  Fed.  Oas.  616. 

The  court  upheld  the  constitutionality  of  the  clause  of  section  44  of  the 
Act  of  1867  which  punishes  by  Imprisonment  a  fraudulent  disposition  of 
goods  obtained  on  credit  and  remaining  unpaid  for  within  three  months 
preceding  the  commencement  of  proceedings  in  bankruptcy.  U.  S.  v. 
Tusey,  6  N.  B.  R.  284;  27  Fed.  Oas.  631. 

In  the  case  cited,  subdivision  9  of  section  5132,  R.  S.,  was  held  to  be 
unconstitutional,  the  court  holding  that  "  an  act  committed  within  a  state, 
whether  for  a  good  or  bad  purpose,  or  whether  with  an  honest  or  criminal 
intent,  cannot  be  rhade  an  offense  against  the  United  States  unless  it 
have  some  relation  to  the  execution  of  a  power  of  congress,  or  to  some 
matter  within  the  jurisdiction  of  the  United  States."  U.  S.  v.  Fox,  95 
U.  S.  670. 

EULES  OF  PkOCEDUBE. 

§  30.  Rules,  Forms,  and  Orders. —  (a.)  All  necessary  rules, 
forms,  and  orders  as  to  procedure  and  for  carrying  this  Act  into  force 
and  effect  shall  be  prescribed,  and  may  be  amended  from  time  to  time, 
by  the  Supreme  Court  of  the  United  States. 

Judge  Hopkins  held  that  the  forms  prescribed  in  the  general  rules 
adopted  by  the  supreme  court  under  the  Act  of  1867  were  not  mandatory, 
but  might  be  adapted  to  the  circumstances  of  each  case.  In  re  Strachan, 
3  Biss.  181;  23  Fed.  Cas.  212. 

Certain  rules  and  forms  under  the  Act  of  1867,  considered.  In  re 
Bellamy,  1  Ben.  390;  3  Fed.  Cas.  121;  1  Ben.  426;  3  Fed.  Cas.  124;  1  Ben. 
474;  3  Fed.  Cas.  126. 

It  was  held  that  the  Act  of  1867  conferred  no  power  on  the  United  States 
district  court  to  make  general  rules  governing  proceedings  in  bankruptcy. 
In  re  Kennedy  et  al.,  7  N.  B.  B.  337;  14  Fed.  Cas.  808. 


Courts  and  Pbocedurb  Thekbik.  199 

Computation  of  Time. 

§  31.  Computation  of  Time.—  (a.)  Whenever  time  is  enumerated 
by  days  in  this  Act,  or  in  any  proceeding  in  bankruptcy,  the  number  of 
days  shall  be  computed  by  excluding  the  first  and  including  the  last, 
unless  the  last  fall  on  a  Sunday  or  holiday,  in  which  event  the  day 
last  included  shall  be  the  next  day  thereafter  which  is  not  a  Sunday 
or  legal  holiday. 

The  last  day  for  a  bankrupt  to  apply  for  his  discharge  under  the  Act  of 
1867  fell  on  Thanksgiving.  It  was  held  that  he  might  apply  on  the  fol- 
lowing day.    In  re  I^ang,  2  N.  B.  R.  480;  14  Fed.  Cas.  1097. 

The  court  refused  to  set  aside  the  proceedings  of  a  meeting  of  creditors 
because  it  was  held  on  Thanksgiving  day.  In  re  McGlyn,  2  Low.  127;  16 
Fed.  Cas.  122. 

Teansfbe  of  Cases. 
§  32.  Transfer  of  Cases. —  (a.)  In  the  event  petitions  are  filed 
against  the  same  person,  or  against  different  members  of  a  partner- 
ship, in  different  courts  of  bankruptcy  each  of  which  has  jurisdiction, 
the  cases  shall  be  transferred,  by  order  of  the  courts  relinquishing 
jurisdiction,  to  and  be  consolidated  by  the  one  of  such  courts  which 
can  proceed  with  the  same  for  the  greatest  convenience  of  parties  in 
interest. 


200  The  Bankeuptcy  Law. 


CHAPTER  V. 

Ophcees,  Theie  Duties   and    Compensation, 
eefbbebs  —  appointment  and  qualification. 

§  33.  Creation  of  Two  Offices. —  (a.)  The  offices  of  referee  and 
trustee  are  hereby  created. 

§  34.  Appointment,  Eemoval,  and  Districts  of  Eeferees. —  (a.) 
Courts  of  bankruptcy  shall,  within  the  territorial  limits  of  which  they 
respectively  have  jurisdiction,  (1.)  appoint  referees,  each  for  a  term 
of  two  years,  and  may,  in  their  discretion,  remove  them  because  their 
services  are  not  needed  or  for  other  cause;  and  (3.)  designate,  and 
from  time  to  time  change,  the  limits  of  the  districts  of  referees,  so 
that  each  county,  .where  the  services  of  a  referee  are  needed,  may  con- 
stitute at  least  one  district. 

§  35.  Qualifications  of  Eeferees. —  (a.)  Individuals  shall  not  be 
eligible  to  appointment  as  referees  unless  they  are  respctively  (1.) 
competent  to  perform  the  duties  of  that  office;  (2.)  not  holding  any 
office  of  profit  or  emolument  under  the  laws  of  the  United  States  or  of 
any  state  other,  than  commissioners  of  deeds,  Justices  of  the  peace, 
masters  in  chancery,  or  notaries  public;  (3.)  not  related  by  consanguin- 
ity or  affinity,  within  the  third  degree  as  determined  by  the  common 
law,  to  any  of  the  judges  of  the  courts  of  bankruptcy  or  circuit  courts 
of  the  United  States,  or  of  the  justices  or  judges  of  the  appellate  courts 
of  the  districts  wherein  they  may  be  appointed;  and  (4.)  residents  of, 
or  have  their  offices  in,  the  territorial  districts  for  which  they  are  to  be 
appointed. 

§36.  Oaths  of  Office  of  Eeferees.— (a.)  Eeferees  shall  take 
the  same  oath  of  office  as  that  prescribed  for  judges  of  United  States 
coiirts. 

§  37.  Number  of  Eeferees. —  (a.)  Such  number  of  referees  shall 
be  appointed  as  may  be  necessary  to  assist  in  expeditiously  transacting 
the  bankruptcy  business  pending  in  the  various  courts  of  bankruptcy. 

JUEISDICTION. 

§  38.  Jurisdiction  of  Eeferees. —  (a.)  Eeferees  respectively  are 
hereby  invested,  subject  always  to  a  review  by  the  judge,  within  the 
limits  of  their  districts  as  established  from  time  to  time,  with  juris- 
diction to 


Officees,  Theik  Duties  and  Compensation.  201 

(1.)  Consider  all  petitions  referred  to  them  by  the  clerks  and  make 
the  adjudications  or  dismiss  the  petitions; 

(2.)  Exercise  the  powers  vested  in  courts  of  bankruptcy  for  the  ad- 
niinii^tering  of  oaths  to  and  the  examination  of  persons  as  witnesses 
and  for  requiring  the  production  of  documents  in  proceedings  before 
them,  except  the  power  of  commitment; 

(3.)  Exercise  the  powers  of  the  judge  for  the  taking  possession  and 
releasing  of  the  property  of  the  bankrupt  in  the  event  of  the  issuance 
bj  the  clerk  of  a  certificate  showing  the  absence  of  a  judge  from  the 
judicial  district,  or  the  division  of  the  district,  or  his  sickness,  or 
inability  to  act; 

(4.)  Perform  such  part  of  the  duties,  except  as  to  questions  arising 
out  of  the  applications  of  bankrupts  for  compositions  or  discharges,  as 
are  by  this  Act  conferred  on  courts  of  bankruptcy  and  as  shall  be  pre- 
scribed by  rules  or  orders  of  the  courts  of  bankruptcy  of  their  re- 
spective districts,  except  as  herein  otherwise  provided;  and 

(5.)  Upon  the  application  of  the  trustee  during  the  examination  of 
the  bankrupts,  or  other  proceedings,  authorize  the  employment  of 
stenographers  at  the  expense  of  the  estates  at  a  compensation  not  to 
exceed  ten  cents  per  folio  for  reporting  and  transcribing  the  pro- 
ceedings. 

In  the  absence  of  objections  by  the  creditors,  the  register  had  power 
under  tlio  Act  of  1867  to  order  a  sale  of  the  debts  and  choses  in  an  action 
belonging  to  the  estate.  In  re  Bank  of  North  Carolina,  19  N.  B.  R.  164;  2 
Fed.  Cas.  668. 

A  register  in  bankruptcy  was  held  under  the  Law  of  1867  to  have  power 
to  direct  the  assignee  to  pay  court  fees  to  officers  of  the  court  out  of  funds 
in  his  hands.    In  re  Lane,  3  Ben.  98;  14  Fed.  Cas.  1069. 

The  register  has  not  the  power  to  decide  on  the  validity  of  objections 
to  questions  in  the  examination  of  a  bankrupt  or  on  the  admissibility  of 
testimony.    In  re  Patterson,  1  N.  B.  E.  147;  18  Fed.  Cas.  1321    (1867). 

The  register  can,  of  his  own  motion,  order  the  bankrupt  to  amend  his 
schedules  to  conform  to  the  facts,  or  when  they"  appear  insufficient  or 
irregular.  But  the  order  of  the  register  should  specify  in  what  respect 
the  schedules  are  defective.  In  re  Orne,  1  N.  B.  R.  79;  18  Fed.  Cas.  823 
(1867). 

Under  the  Act  of  1867  the  register  had  no  authority  to  exclude  a  ques- 
tion addressed  to  a  witness  which  was  challenged  for  want  of  competency, 
materiality  or  relevancy.  In  re  Rosenfield,  1  N.  B.  R.  319;  20  Fed.  Cas. 
12(». 

It  was  held  under  the  Act  of  1867  that  a  register  had  power  to  adjourn 
a  meeting  of  creditors  when,  in  his  opinion,  the  interest  of  the  creditors, 
as  a  whole,  required  it.    In  re  Cheney,  19  N.  B.  R.  16;  5  Fed.  Cas,  541. 


303  The  Bankkupxct  Law. 

Under  the  Act  of  1867  the  register  in  bankruptcy  was  required  to  take 
possession  of  the  bankrupt's  property,  and  keep  it  until  it  was  turned 
over  to  the  assignee  on  his  appointment.  In  re  Hasbrouck,  1  Ben.  402; 
11  Fed.  Cas.  7G7. 

A  register  has  no  power  to  order  the  bankrupt  to  execute  deeds  releasing 
an  interest  held  at  the  time  of  filing  his  petition.  In  re  A.  B.,  3  N.  B.  K. 
241;  1  Fed.  Cas.  3. 

Judge  Blatchford  construed  rule  3<  under  the  Act  of  1867  to  mean  that 
a  register  could  not  order  the  proof  of  a  debt  to  be  expunged  or  reduced 
if  the  debtor  objected,  but  that  he  must  certify  the  question  to  the  court. 
In  re  Muldaur  et  al.,  8  Ben.  127;  17  Fed.  Oas.  959. 

Under  section  26  of  the  Act  of  1867,  the  register  could  make  an  order 
for  the  examination  of  the  bankrupt  or  a  witness  without  applying  to 
the  court,  and  such  examination  was  conducted  substantially  as  in  sup- 
plementary proceedings  under  the  laws  of  the  state.  In  re  Pioneer  Paper 
Co.,  7  N.  B.  R.  250;  19  Fed.  Cas.  715. 

Questions  to  be  decided  by  the  district  court  must  arise  regularly  in  the 
course  of  proceedings  before  the  register,  and  between  parties  who  have 
a  legal  right  to  raise  them,  unless  there  is  a  suggestion  that  the  proper 
party  is  acting  in  bad  faith  in  refusing  to  raise  such  question  or  other 
similar  suggestion.    In  re  Wright,  1  N,  B.  R.  393;  30  Fed.  Cas.  662  (1873). 

Certain  creditors  appeared  before  the  register  and  filed  objections  to 
proceedings  in  bankruptcy  on  the  ground,  among  others,  that  the  bank- 
rupt had  omitted  from  his  schedule  property  held  by  him  or  others  for 
his  use.  The  court  held  that  this  was  not  such  an  "  opposition  to  the 
discharge  "  as  required  the  register  to  refer  the  matter  to  the  court.  In 
re  Hill,  1  Ben.  321;  12  Fed.  Oas.  144. 

It  was  held  under  the  circumstances  of  the  case  that  the  register  might 
appoint  a  watchman  to  take  charge  of  the  property  of  the  bankrupt. 
In  re  Bogert,  2  N.  B.  B.  585;  3  Fed.  Oas.  803. 

Where  a  trustee  had  been  appointed  by  the  creditors  under  section  43 
of  the  Act  of  1867,  it  was  held  that  the  register  had  no  power  on  the  mere 
application  of  creditors  to  issue  a  summons  for  his  examination  or  for  the 
production  of  his  books  and  papers.    In  re  Hicks,  2  Fed.  Cas.  851. 
[See  notes  to  §  31  as  to  authority  of  referees  in  the  examination  of  witnesses.] 

Duties. 

g  39.  Duties    of    Referees. —  (a.)  Eeferees  shall 

(1.)  Declare  dividends  and  prepare  and  deliver  to  trustees  dividend 
sheets  showing  the  dividends  declared  and  to  whom  payable; 

(3.)  Examine  all  schedules  of  property  and  lists  of  creditors  filed  by 
bajikrupts  and  cause  such  as  are  incomplete  or  defective  to  be 
mended; 

(3.)  Furnish  such  information  concerning  the  estates  in  process  of 
administration  before  them  as  may  be  requested  by  the  parties  in  in- 
terest: 


Officees,  Theih  Duties  and  Compensation.  203 

(4.)  Give  notices  to  creditors  as  herein  provided;, 

(5.)  Make  up  records  embodying  the  evidence,  or  the  substance 
thereof,  as  agreed  upon  by  the  parties  in  all  contested  matters  arising 
before  them,  whenever  requested  to  do  so  by  either  of  the  parties 
thereto,  together  with  their  findings  therein,  and  transmit  them  to  the 
judges; 

(6.)  Prepare  and  file  the  schedules  of  property  and  lists  of  creditors 
required  to  be  filed  by  the  bankrupts,  or  cause  the  same  to  be  done, 
when  the  bankrupts  fail,  refuse,  or  neglect  to  do  so; 

(7.)  Safely  keep,  perfectj  and  transmit  to  the  clerks  the  records, 
herein  required  to  be  kept  by  them,  when  the  cases  are  concluded; 

(8.)  Transmit  to  the  clerks  such  papers  as  may  be  on  file  before 
them  whenever  the  same  are  needed  in  any  proceedings  in  courts  and 
in  like  manner  secure  the  return  of  such  papers  after  they  have  been 
used,  or.  if  it  be  impracticable  to  transmit  the  original  papers,  transmit 
certified  copies  thereof  by  mail; 

(9.)  Upon  application  of  any  party  in  interest,  preserve  the  evidence 
taken  or  the  substance  thereof  as  agreed  upon  by  the  parties  before 
them  when  a  stenographer  is  not  in  attendance;  and 

(10.)  Whenever  their  respective  offices  are  in  th©  same  cities  or 
towTis  where  the  courts  of  bankruptcy  convene,  call  upon  and  receive 
from  the  clerks  all  papers  filed  in  courts  of  bankruptcy  which  have 
been  referred  to  them. 

(b.)  Eeferees  shall  not 

(1.)  Act  in  cases  in  which  they  are  directly  or  indirectly  inter- 
ested; 

(2.)  Practice  as  attorneys  and  counselors  at  law  in  any  bankruptcy 
proceedings;  or 

(3.)  Purchase,  directly  or  indirectly,  any  property  of  an  estate  in 
bankruptcy. 

Judge  Blatchford  held  that  proceedings  before  a  register  are  under  his 
control,  and  should  he  conducted  without  reasonable  delay,  but  that  no 
inflexible  rule  can  be  prescribed  as  to  postponements.  In  re  Hyman,  3 
Ben.  28;  12  Fed.  Gas.  1134. 

Where  a  part  of  the  bankrupt's  property  is  covered  by  a  lien  for  its 
full  value,  the  assignee  in  bankruptcy  will  not  be  required  to  determine 
the  priority  or  validity  of  subsequent  liens.  Mattocks  v.  Perrington,  2 
Hask.  331;  16  Fed.  Gas.  1147. 

A  general  reference  to  the  register  was  held  to  be  sufficient  to  authorize 
him  to  take  testimony  regarding  the  claim  of  the  petitioning  creditors  for 
costs  and  disbursements.  In  re  Robinson,  43  How.  Pr.  25;  20  Fed.  Gas. 
980. 


304  The  Banketjptot  Law. 

Compensation. 

§  40.  Compensation  of  Referees. —  (a.)  Referees  shall  receive,  as 
full  compensation  for  their  services,  payable  after  they  are  rendered,  a 
fee  of  ten  doUars  deposited  with  the  clerk  at  the  time  the  petition  is 
filed  in  each  case,  except  when  a  fee  is  not  required  from  a  voluntary 
bankrupt,  and  from  estates  which  have  been  administered  before  them 
one  per  centum  commissions  on  sums  to  be  paid  as  dividends  and 
commissions,  or  one-half  of  one  per  centum  on  the  amount  to  be  paid 
to  creditors  upon  the  confirmation  of  a  composition. 

(b.)  Whenever  a  case  is  transferred  frm  one  referee  to  another  the 
judge  shall  determine  the  proportion  in  which  the  fee  and  commis- 
sions therefor  shall  be  divided  between  the  referees. 

(e.)  In  the  event  of  the  reference  of  a  case  being  revoked  before  it  is 
concluded,  and  when  the  case  js  specially  referred,  the  judge  shall 
determine  what  part  of  the  fee  and  commissions  shall  be  paid  to  the 
referee. 

In  the  case  cited,  are  discussed  allowances  to  registers,  services  for 
which  charges  are  allowable,  and  how  questions  concerning  such  charges 
can  be  raised.    In  re  Sherwood,  1  N.  B.  R.  344;  21  Fed.  Gas.  1286  (1868). 

After  the  deposit  for  costs  had  been  exhausted,  and  no  assets  had  come 
Into  the  hands  of  the  assignee,  the  court  ordered  the  bankruppt,  in  a 
proceeding  of  involuntary  bankruptcy,  to  pay  the  register's  and  clerk's 
costs.    In  re  McBride,  15  Fed.  Oas.  1218. 

It  was  held  under  the  Act  of  1867  that  the  court,  and  not  the  clerk, 
should  fix  the  fees  of  the  register,  and  that  the  register  could  be  com- 
pelled to  pay  any  excess  of  fees  received  by  him  into  the  court.  In  re 
Portington  et  al.,  8  Ben.  173;  19  Fed.  Oas.  1082. 

The  fees  taxed  by  a  register  for  his  own  services  are  considered  by 
Judge  Blatchford  in  the  case  cited.  In  re  Robinson,  2  Ben.  145;  20  Fed. 
Cas.  974. 

Contempts. 
§  41.  Contempts  Before  Keferees. —  (a.)  A  person  shall  not,  in 
proceedings  before  a  referee,  (1)  disobey  or  resist  any  lawful  order, 
process,  or  writ;  (3)  misbehave  during  a  hearing  or  so  near  the  place 
thereof  as  to  obstruct  the  same;  (3)  neglect  to  produce,  after  having 
been  ordered  to  do  so,  any  pertinent  document;  or  (4)  refuse  to  appear 
after  having  been  subpoenaed,  or,  upon  appearing,  refuse  to  take  the 
oath  as  a  witness,  or,  after  having  taken  the  oath,  refuse  to  be  exam- 
ined according  to  law:  Provided,  That  no  person  shall  be  required  to 
attend  as  a  witness  before  a  referee  at  a  place  outside  of  the  State  of 


Opficehs,  Theih  Duties  and  Compensation.  205 

his  residence,  and  more  than  one  hundred  miles  from  such  place  of 
Residence,  and  only  in  case  his  lawful  mileage  and  fee  for  one  day's 
attendance  shall  be  first  paid  or  tendered  to  him. 

(b.)  The  referee  shall  certify  the  facts  to  the  judge,  if  any  person 
shall  do  any  of  the  things  forbidden  in  this  section.  The  Judge  shall 
thereupon,  in  a  summary  manner,  hear  the  evidence  as  to  the  acts 
complained  of,  and,  if  it  is  such  as  to  warrant  him  in  so  doing,  punish 
such  person  in  the  same  manner  and  to  the  same  extent  as  for  a  con- 
tempt committed  before  the  court  o£  bankruptcy,  or  commit  such 
person  upon  the  same  conditions  as  if  the  doing  of  the  forbidden  act 
had  occurred  with  reference  to  the  process  of,  or  in  the  presence  of, 
the  court. 

Where  a  bankrupt  refuses  to  answer  a  proper  question  upon  examina- 
tion before  the  register,  the  court  will  compel  him  to  answer.  In  re  Holt, 
3  N.  B.  R.  241;  12  Fed.  Cas.  428. 

A  custodian  of  the  estate  of  the  bankrupt  ad  interim  had  been  appointed, 
and  the  register  had  ordered  the  bankrupt  to  pay  over  to  him  certain 
moneys.  Held,  that  disobedience  of  such  an  order  was  a  contempt.  In  re 
Speyer  et  al.,  6  N.  B.  B.  255;  22  Fed.  Oas.  928. 

It  was  held  under  the  Act  of  1867  that  a  malicious  attack  upon  the 
character  of  a  register  In  bankruptcy  in  a  paper  filed  in  court  was  a 
contempt  of  court.    In  re  Breck  et  al.,  13  N.  B.  E.  216;  4  Fed.  Cas.  44. 

[See  notes  to  §  81  ] 

Eeooeds. 

§  42.  Records  of  Referees. —  (a.)  The  records  of  all  proceedings 
in  each  case  before  0,  referee  shall  be  kept  as  nearly  as  may  be  in  the 
same  manner  as  records  are  now  kept  in  equity  cases  in  circuit  courts 
of  the  United  States. 

(b.)  A  record  of  the  proceedings  in  each  case  shall  be  kept  in  a  sepa- 
rate book  or  books,  and  Shall,  together  with  the  papers  on  file,  con- 
stitute the  records  of  the  case. 

(c.)  The  book  or  books  containing  a  record  of  the  proceedings  shall, 
when  the  case  is  concluded  before  the  referee,  be  certified  to  by  him, 
and,  together  with  such  papers  as  are  on  file  before  him,  be  transmitted 
to  the  court  of  bankruptcy  and  shall  there  remain  as  a  part  of  the 
records  of  the  court. 

Vacancies. 

§43.  Referee's  Absence  or  Disability. —  (a.)  Whenever  the  office 
of  a  referee  is  vacant,  or  its  occupant  is  absent  or  disqualified  to  act. 


206  The  Bankeuptcy  Law. 

the  judge  may  act,  or  may  appoint  another  -referee,  or  another  referee 
holding  an  appointment  under  the  same  court  may,  by  order  of  th# 
judge,  temporarily  fill  the  vacancy. 

Trustees  —  Appointment,  Qualifications,  Eemoval,  Etc. 

§  44.  Appointment  of  Trustees. —  (a.)  The  creditors  of  a  bank- 
rupt estate  shall,  at  their  first  meeting  after  the  adjudication  or  after 
a  vacancy  has  occurred  in  the  office  of  trustee,  or  after  an  estate  has 
been  reopened,  or  after  a  composition  has  been  set  aside  or  a  dis- 
charge revoked,  or  if  there  is  a  vacancy  in  the  of&ce  of  trustee,  ap- 
point one  trustee  or  three  trustees  of  such  estate.  If  the  creditors  do 
not  appoint  a  trustee  or  trustees  as  herein  provided,  the  court  shall 
do  so. 

§  45.  ftualiflcations  of  Trustees. —  (a.)  Trustees  may  be  (1)  indi- 
viduals who  are  respectively  competent  to  perform  the  duties  of  that 
office,  and  reside  or  have  an  office  in  the  judicial  district  within  which 
they  are  appointed,  or  (3)  corporations  authorized  by  their  charters 
or  by  law  to  act  in  such  capacity  and  having  an  office  in  the  judicial 
district  within  which  they  are  appointed. 

§  46.  Death  or  Removal  of  Trustees. —  (a.)  The  death  or  re- 
moval of  a  trustee  shall  not  abate  any  suit  or  proceeding  which  he 
is  prosecuting  or  defending  at  the  time  of  his  death  or  removal,  but 
the  same  may  be  proceeded  with  or  defended  by  his  joint  trustee  or 
successor  in  the  same  manner  as  though  the  same  had  been  com- 
menced or  was  being  defended  by  such  joint  trustee  alone  or  by  such 
successor. 

When  only  one  creditor  proves  his  debt  or  attends  the  meeting,  he  Is 
entitled  to  name  the  assignee.    Anon.,  1  N.  B.  R.  216;  1  Fed.  Cas.  1013. 

When  only  one  creditor  appears  at  a  meeting  of  craditors  to  elect  an 
assignee,  he  has  the  right  to  malie  the  election.  In  re  Haynes,  2  N.  B.  E. 
227;  11  Fed.  Oas.  914. 

It  is  optional  with  creditors  who  have  proved  their  claims  whether  they 
will  or  will  not  wait  for  others  to  prove  before  proceeding  to  elect  an 
assignee.  In  re  Lake  Superior  Ship  Onal  R.  I.  Co.,  7  N.  B.  R.  376;  14 
Fed.  Cas.  951. 

When  a  creditor  is  added  by  an  amendment  to  the  bankrupt's  schedule. 
It  is  not  necessary  to  hold  another  meeting  of  the  creditors  to  elect  an 
assignee,  if  one  has  already  been  chosen.  In  re  Carson,  5  Ben.  277;  5 
Fed.  Oas.  172. 

The  result  of  an  election  of  assignee  cannot  be  changed  by  the  votes 
of  those  who  filed  their  proof  of  claims  after  the  election.  In  re  Lake 
Superior  Ship  Canal  R.  I.  Co.,  7  N.  B.  R.  376;  14  Fed.  Cas.  951. 


OfficebSj  Theie  Duties  and  Compensation.  207 

Creditors  who  hare  received  payment  under  the  terms  of  a  composition 
which  is  set  aside  cannot  vote  at  an  election  of  assignee  to  proceed  with 
the  administration  of  the  estate.  Ex  parte  Hamlin,  2  Low.  571;  1  Fed. 
Cas.  367. 

When  a  separate  adjudication  is  made  against  a  bankrupt  who  is,  or 
has  been  a  member  of  a  firm,  his  individual  creditors  have  a  right  to  vote 
for  assignee.    In  re  Falliner,  16  N.  B.  R.  503;  8  Fed.  Cas.  973. 

A  power  of  attorney  given  to  a  firm  to  vote  for  the  election  of  an 
assignee  can  only  be  exercised  by  all  the  members  of  the  firm.  In  re 
Foye,  2  Low.  399;  9  Fed.  Cas.  649. 

The  register  has  no  power  without  special  order  of  the  court  to  Inquire 
Into  the  right  of  creditors  to  vote  In  the  election  of  an  assignee.  The  fact 
that  persons  fraudulently  and  by  collusion  claiming  to  be  creditors  voted 
in  such  election  may  be  presented  to  the  court  as  a  reason  why  such 
election  should  not  be  approved.  In  re  Noble,  8  Ben.  332;  18  Fed.  Cas. 
282  (1869). 

One  member  of  a  firm  can  cast  the  vote  of  a  firm  at  a  meeting  of  cred- 
itors for  the  full  amount  of  the  debt;  but  as  to  joint  creditors  who  are 
not  partners  neither  can  act  or  vote  without  the  authority  of  the  other. 
In  re  Purvis,  1  N.  B.  B.  163;  20  Fed.  Cas.  74. 

The  vote  of  a  creditor  for  assignee  which  was  procured  by  corruption 
should  be  excluded;  but  it  does  not  invalidate  the  election  unless  it  changed 
the  result.    In  re  Pfromm  et  al.,  8  N..  B.  R.  357;  19  Fed.  Cas.  415. 

Under  the  Act  of  1867  it  required  the  votes  of  a  majority  of  all  who 
had  proved  claims  to  elect  an  assignee,  and  a  majority  of  votes  cast  was 
not  sufficient.    In  re  Purvis,  1  N.  B.  R.  163;  20  Fed.  Cas.  74. 

Neither  an  agent  nor  an  attorney-at-law  of  a  creditor  can  vote  for 
assignee  unless  duly  constituted  an  attorney  in  fact.    Ibia. 

A  creditor  cannot  vote  at  a  meeting  when  his  claim  Is  exceeded  by  a 
set  off  for  a  debt  due  to  the  bankrupt.  In  re  Purcell,  18  N.  B.  B.  447;  20 
Fed.  Cas.  61. 

The  question  submitted  being  whether  a  creditor  having  a  mortgage 
upon  the  homestead  of  the  bankrupt  in  Kansas  to  secure  his  demand,  has 
a  right  to  prove  his  demand,  and  vote  on  the  choice  of  an  assignee  in 
bankruptcy,  it  was  answered  in  the  affirmative.  In  re  Stlllwell,  7  N.  B.  R. 
226;  23  Fed.  Cas.  89. 

One  member  of  a  firm  can  execute  a  power  of  attorney  to  a  third  per- 
son authorizing  him  to  cast  the  vote  of  the  firm  for  the  election  of  the 
assignee.    In  re  Barrett,  2  Hughes,  444;  2  Fed.  Cas.  909. 

Judge  Lowell  condemned  the  practice  of  procunng  creditors  with  small 
privileged  claims  for  wages  to  prove  their  debts  at  the  first  meeting,  so 
as  to  vote  for  assignee,  and  intimated  that  he  might  refuse  to  confirm 
such  an  election.  At  the  same  time  he  denied  a  motion  to  reject  the 
proofs  of  such  claims.    In  re  Houghton,  2  Low.  243;  12  Fed.  Cas.  588. 

Property  was  sold  at  public  auction  after  the  adjudication  of  the  mort- 
gagor on  a  mortgage  for  $15,000.  The  mortgagee  purchased  it  for  $142.50 
and  then  proved  up  the  deficiency  against  the  estate  of  the  mortgagor  in 


308  The  Bankeuptcy  Law. 

bankruptcy.  His  vote  on  the  claim  so  proved  controlled  the  election  of 
the  assignee.  The  court  held  that  such  a  method  of  ascertaining  the  value 
of  the  security  was  not  contemplated  by  the  Act  of  1867,  and  that  the 
election  of  the  assignee  was  irregular.  In  re  Hunt,  17  N.  B.  B.  205;  12 
Fed.  Cas.  902. 

"  It  is  only  the  creditors  who  have  proved  their  debts  that  can  partici- 
pate in  choosing  an  assignee.  The  proving  of  debts  must,  therefore,  pre- 
cede the  choosing  of  an  assignee;  but  it  may  often  happen  that  a  bankrupt 
owes  a  hundred  or  more  debts  and  that  it  may  be  impossible,  owing 
to  the  complicated  nature  of  some,  to  go  through  the  proofs  of  one-tenth 
of  them  on  the  day  designated  in  the  warrant  of  notice.  If,  therefore, 
in  such  case  a  meeting  cannot  adjourn  to  the  next  or  another  day  to  take 
proof  of  other  debts,  it  will  follow  that  a  power  which  the  statute  con- 
templates shall  be  exercised  by  a  greater  part  in  number  and  value  of 
the  whole.  Is  actually  exercised  by  one-half  of  the  creditors  representing 
but  a  small  portion  of  the  debts.  The  plainest  principles  of  justice  would 
require  such  an  adjournment  from  day  to  day  as  would  furnish  proper 
opportunity  to  all  creditors  present  to  prove  their  debts,  and  thus  qualify 
themselves  to  join  in  selecting  an  assignee."  In  re  Phelp  et  al.,  1  N.  B.  R. 
525;  19  Fed.  Cas.  436. 

An  attorney  for  creditors  is  eligible  to  election  as  assignee.  In  re  Law- 
sou,  2  N.  B.  R.  113;  15  Fed.  Oas.  88;  In  re  Barrett,  2  Hughes,  144;  2  Fed. 
Cas.  909. 

It  was  held  to  be  a  sufficient  objection  to  an  appointment  of  an  assignee 
that  he  was  a  director  of  a  bank  to  whom  the  bankrupt  had  given  a 
preference.    In  re  Powell,  2  N.  B.  R.  45;  19  Fed.  Cas.  1211. 

When  an  assignee  has  been  chosen  in  the  interest  of  the  bankrupt, 
or  through  his  influence,  the  court  will  refuse  to  confirm  the  election.  In 
re  Bliss,  1  Ben.  407;  3  Fed.  Oas.  705. 

Judge  Lovell  expressed  the  opinion  that  a  nonresident  of  the  district, 
or  a  person  who  has  an  interest  antagonistic  to  that  of  the  general  cred- 
itors, or  the  attorney  of  the  bankrupt,  should  not  be  chosen  assignee;  but 
that  the  objections  do  not  extend  to  a  general  creditor  or  his  attorney,  or 
to  a  former  attorney  of  the  bankrupt.  In  re  Clairmont,  1  Low.  230;  5  Fed. 
Cas.  810. 

Judge  Blatchford  refused  to  to  confirm  the  election  of  an  assignee  who 
had  made  it  a  regular  business  to  seek  out  creditors  and  solicit  them  to 
prove  their  debts  and  vote  for  him.  In  re  Doe,  2  N.  B.  B.  308;  7  Fed. 
Cas.  802. 

Under  the  Act  of  1867  the  court  refused  to  confirm  the  election  of  an 
assignee  who  resided  out  of  the  district.  In  re  Havens  IN  B  R  485" 
11  Fed.  Cas.  849. 

The  court  refused  to  sanction  the  election  of  an  assignee  when  there 
was  only  one  creditor  present  at  the  meeting,  and  he  voted  for  a  person 
who  was  a  stranger  to  himself  and  who  had  solicited  his  vote.  In  re  A. 
B.,  3  Ben.  66;  1  Fed.  Cas.  2. 


Officees,  Theik  Duties  and  Compensation.  209 

An  assrgnee  chosen  at  a  meeting  of  creditors  had  promised  to  pay  the 
claims  of  two  creditors  In  full  to  procure  their  powers  of  attorney  to 
vote  at  such  meeting.  The  court  refused  to  confirm  the  election.  In  re 
Haas  et  al.,  8  N.  B.  R.  189;  11  Fed.  Cas.  138. 

In  the  absence  of  evidence  of  bad  character  or  incompetency,  the  court 
will  not  interfere  with  the  election  of  an  assignee  chosen  by  a  majority 
of  the  creditors  in  number  and  value.  In  re  Grant,  2  N.  B.  R.  106;  10 
Fed.  Cas.  973. 

A  receiver  had  been  appointed  under  a  state  law  for  an  Insolvent  bank- 
Subsequently,  proceedings  in  bankruptcy  were  commenced,  and  the  cred- 
itors elected  the  receiver  trustee.  They  also  elected  a  committee  of  cred- 
itors, one  of  whom  was  the  president  of  a  bank  which  claimed  to  be  a 
preferred  creditor.  The  court  refused  to  confirm  the  election  of  the 
trustee  or  the  committee,  and  appointed  an  assignee.  In  re  Stuyvesant 
Bank,  5  Ben.  566;  23  Fed.  Cas.  339. 

It  is  the  duty  of  the  court  of  bankruptcy  to  see  that  the  rights  of  cred- 
itors are  protected  in  the  choice  of  an  assignee;  and  the  court  set  aside 
the  election  of  an  assignee  who  had  been  a  bookkeeper  of  the  bankrupt, 
and  when  the  bankrupt  and  his  attorney  seemed  to  control  the  action  of 
the  creditors.    In  re  Wetmore  et  al.,  16  N.  B.  R.  514;  29  Fed.  Cas.  842. 

Decision  by  register:  "  It  has  been  uniformly  held  by  the  courts  that 
they  will  not  affirm  the  election  or  appointment  of  an  assignee  who  is 
a  relative  of  the  bankrupt"  In  re  Zlnn,  4  N.  B.  R.  370;  40  How.  Pr. 
461;  30  Fed.  Cas.  935. 

The  mere  fact  of  the  relationship  in  the  ninth  degree  or  less  of  the  pro- 
posed trustee,  on  the  pai-t  of  the  bankrupt  or  of  the  largest  creditor, 
is  no  disqualification.  In  re  Zinn,  4  Ben.  500;  4  N.  B.  R.  436;  30  Fed.  Cas. 
934  (1871). 

Under  the  Act  of  1867  the  court  had  authority  to  approve  or  disapprove 
of  the  election  of  an  assignee  by  the  creditors.;  but  it  was  held  that  this 
was  a  legal  discretion,  and  where  the  choice  was  made  by  a  large  ma- 
jority both  in  number  and  amount,  the  court  could  not  refuse  to  confirm 
upon  mere  rumors  of  commercial  dishonesty.  In  re  Funkenstein  et  al., 
1  Pac.  Law  Rep.  11;  9  Fed.  Cas.  1004. 

Several  members  of  the  family  of  one  of  the  members  of  a  bankrupt 
firm  had  proved  claims  against  the  estate.  His  son  was  elected  assignee. 
The  court  refused  to  confirm  the  election.  In  re  Bogart  et  al.,  3  N.  B.  R. 
651;  3  Fed.  Cas.  803. 

When  there  are  no  assets  and  no  creditors  have  proved  debts,  an  as- 
signee should  nevertheless  be  appointed.  Anon.,  1  N.  B.  R.  122;  1  Fed. 
Cas.  1012. 

Judge  Longyear,  of  the  district  court  of  Michigan,  said  that  the  Bank- 
rupt Act  of  1807  prescribed  no  particular  manner  of  voting  for  assignee, 
and  added:  "  It  may  be  assumed,  therefore,  that  any  mode  or  manner 
of  voting  by  which  the  choice  of  each  creditor  entitled  to  vote  is  clearly 
expressed  is  sufficient.  It  may  no  doubt  be  taken  by  ballot,  or  rirn  voce. 
It  may  be  taken  by  calling  the  name  of  each  creditor,  or  by  calling  upon 
U 


310  The  Bankkuptcy  Law. 

the  person  or  persons  representing  creditors  by  power  of  attorney  to 
name  tlae  clioice  of  the  creditor  or  creditors  represented  by  him."  In  re 
Lalie  Superior  Ship  Oanal    E.  I.  Co.,  7  N.  B.  R.  376;  14  Fed.  Cas.  951. 

Judge  Blatchford  decided,  under  the  Act  of  18OT,  that  when  no  creditor 
had  proved  his  debt  at  the  time  fixed  for  the  first  meeting  of  creditors, 
the  judge  or  register  could  appoint  an  assignee.  In  re  Cogswell,  1  Ben. 
388;  0  Fed.  Oas.  11. 

The  bankrupt  himself  could  be  heard  in  objection  to  the  appointment  of 
an  assignee  under  the  Act  of  1867.  In  re  McGlyn,  2  Low.  127;  16  Fed. 
Cas.  122. 

At  the  first  meeting  of  creditors,  the  selection  of  a  certain  assignee 
was  expressly  opposed.  The  meeting  was  adjourned  to  a  subsequent  day, 
when,  the  opposing  creditors  not  being  present,  the  assignee  first  pro- 
posed was  selected,  and  the  register  reported  that  he  was  chosen  with- 
out opposition.  The  facts  being  presented  to  the  court,  it  was  held  that 
the  register  erred  in  so  reporting,  and  that  he  should  have  reported  the 
facts,  the  adjourned  meeting  being  but  a  continuance  of  the  first  meeting. 
In  re  Norton,  18  Fed.  Cas.  416  (1873). 

The  court  held  that  the  appointment  of  an  assignee  by  a  register  should 
be  annulled,  though  no  formal  objection  was  made  at  the  time  by  any 
of  the  creditors,  but  where  there  was  shown  to  be  an  opposing  interest. 
In  re  Pearson,  2  N.  B.  R.  477;  19  Fed.  Cas.  65. 

Held,  under  the  Act  of  1867,  that  a  register  cannot  directly  or  indi- 
rectly interfere  with  the  choice  of  the  assignee  by  creditors.  In  re  Smith, 
2  Ben.  113;  22  Fed.  Cas.  381. 

Under  the  Act  of  1800,  Judge  Oranch  instructed  the  jury  that  where  an 
assignee  in  bankruptcy  was  plaintiff,  he  must  prove  himself  to  be  duly 
appointed  by  producing  the  original  commission  and  the  proceedings 
thereon,  or  a  certified  copy  thereof  and  the  original  deed  of  assignment. 
Mclver  v.  Moore,  1  Cranch   C.  C.  90;  16  Fed.  Cas.  153  (1802). 

Irregularity  in  the  proof  of  a  claim  which  did  not  afCec*  the  result  of 
the  election  of  assignee  is  not  sufiicient  ground  for  setting  che  election 
aside.    In  re  Jackson,  7  Biss.  280;  13  Fed.  Cas.  191. 

Creditors  who  have  not  been  allowed  to  prove  their  claims  so  as  to 
vote  for  assignee  without  fault  of  their  own,  may  apply  to  ihe  court,  and 
on  a  proper  showing  the  court  will  set  aside  the  result  and  order  a  new 
election.  In  re  Lake  Superior  Ship  Canal  R.  I.  Co.,  7  N.  B.  R.  376;  14 
Fed.  Cas.  951. 

Under  the  Act  of  1867,  an  order  to  set  aside  the  appointment  of  an 
assignee  could  only  be  made  by  the  district  judge,  and  upon  notice.  In 
re  Stokes,  1  N.  B.  R.  489;  23  Fed.  Cas.  134. 

,  The  court  refused  to  sanction  the  election  of  a  trustee,  and  a  committee 
to  supervise  his  action,  under  section  43  of  the  Act  of  1867,  which  con- 
sisted of  only  two  members,  one  of  whom  was  the  trustee  himself.  In  re 
Stillwell,  2  N.  B.  R.  526;  23  Fed.  Cas.  88. 

Under  the  Act  of  1867,  even  after  an  assignee  has  been  duly  appointed, 
a  creditor  may  arrange  by  trust  deed  to  have  the  assignee  removed,  and 


Officers,  Their  Duties  and  Compensation.  311 

In  his  stead  to  have'  trustees  appointed  to  administer  the  bankrupt's 
estate.    In  re  Jones,  2  N.  B.  R.  59;  13  Fed.  Gas.  933. 

The  removal  of  an  assignee  by  the  district  court  will  not  be  reviewed 
by  the  circuit  court.    In  re  Adler,  2  Woods,  571;  1  Fed.  Oas.  176. 

Where  an  application  was  made  for  the  removal  of  an  assignee  tlie 
court  ordered  the  register  to  employ  counsel  to  represent  the  estate  on 
the  order  to  show  cause.    In  re  Price,  4  N.  B.  R.  406;  19  Fed.  Oas.  1313. 

The  assignee  was  clerk  of  the  bankrupt's  attorney  and  was  charged 
by  creditors  with  mismanagement  of  the  estate.  Under  the  circumstances 
of  the  case,  the  court  removed  him,  and  appointed  a  new  assignee;  but 
it  appearing  that  the  former  assignee  had  acted  in  good  faith,  the  costs 
of  the  proceedings  were  ordered  to  be  paid  out  of  the  estate.  In  re 
Malory,  4  N.  B.  R.  153;  16  Fed.  Gas.  546. 

Where  a  new  warrant  is  issued  containing  the  names  of  creditors  that 
have  been  added  by  an  amended  petition  after  the  election  of  an  assignee, 
the  assignee  should  not  be  removed  without  an  application,  of  which  all 
the  creditors  should  have  notice.  In  re  Perry,  1  N.  B.  R.  220;  19  Fed.  Oas. 
263. 

An  assignee  who  had  permitted  the  bankrupt's  real  estate  to  be  sold  for 
taxes  was  removed,  notwithstanding  he  had  acted  on  the  advice  of  coun- 
sel, and  was  ordered  to  pay  from  his  own  funds  the  costs  of  the  petition 
for  his  removal.    In  re  Morse,  7  N.  B.  R.  56;  17  Fed.  Oas.  848.      • 

The  court  refused  to  remove  an  assignee  for  involving  the  estate  in 
needless  litigation  when  it  appeared  that  it  was  done  on  the  advice  of 
counsel.    In  re  Blodget  et  al.,  5  N.  B.  B.  472;  3  Fed.  Gas.  716. 

Where  a  resolution  for  the  removal  of  an  assignee  was  passed  by  the 
votes  of  parties  whose  claims  the  assignee  was  seeking  to  impeach,  the 
court  refused  to  remove  him.    In  re  Dewey,  1  Low.  490;  7  Fed.  Oas.  572. 

Duties. 

§  47.  Duties  of  Trustees. —  (a.)  Trustees  shall  respectively 

(1.)  Account  for  and  pay  over  to  the  estates  under  their  control 
all  interest  received  by  them  upon  property  of  such  estates; 

(3.)  Collect  and  reduce  to  money  the  property  of  the  estates  for 
which  they  are  trustees,  under  the  direction  of  the  court,  and  close 
up  the  estate  as  expeditiously  as  is  compatible  with  the  best  interests 
of  the  parties  in  interest; 

(3.)  Deposit  all  money  received  by  them  in  one  of  the  designated 
depositories; 

(4.)  Disburse  money  only  by  check  or  draft  on  the  depositories  in 
which  it  has  been  deposited; 

(5.)  Furnish  such  information  concerning  the  estates  of  which 
they  are  trustees  and  their  administration  as  may  be  requested  by 
parties  in  interest; 


21S  The  Bankeuptot  Law. 

(6.)  Keep  regular  accounts  showing  all  amounts  received  and  from 
what  tsources  and  all  amounts  expended  and  on  what  accounts; 

(7.)  Lay  before  the  final  meeting  of  the  creditors  detailed  state- 
ments of  the  administration  of  the  estates; 

(8.)  Make  final  reports  and  file  final  accounts  with  the  courts  fif- 
teen days  before  the  days  fixed  for  the  final  meetings  of  the  creditors; 

(9.)  Pay  dividends  within  ten  days  after  they  are  declared  by  the 
referees; 

(10.)  Eeport  to  the  courts,  in  writing,  the  condition  of  the  estates 
and  the  amounts  of  money  on  hand,  and  such  other  details  as  may  be 
required  by  the  courts,  within  the  first  month  after  their  appointment 
and  every  two  months  thereafter,  unless  otherwise  ordered  by  the 
courts;  and 

(11.)  Set  apart  the  bankrupt's  exemptions  and  report  the  items  and 
estimated  value  thereof  to  the  court  as  soon  as  practicable  after  their 
appointment. 

(b.)  Whenever  three  trustees  have  been  appointed  for  an  estate,  the 
concurrence  of  at  least  two  of  them  shall  be  necessary  to  the  validity 
of  their  every  act  concerning  the  administration  of  the  estate. 

An  assignee  in  bankruptcy  can  recover  money  loaned  by  the  bankrupt 
after  the  petition  was  filed  and  before  adjudication.  Crompton  et  al.  v. 
Conkling,  9  Ben.  225;  6  Fed.  Oas.  84& 

An  assignee  in  bankruptcy  has  the  right  to  bring  suit  to  protect  the 
estate,  notwithstanding  the  pendency  of  a  creditor's  suit  brought  In 
aid  of  the  estate,  in  which  suit  a  receiver  has  been  appointed.  Shainwald 
V.  Davids,  69  Fed.  Rep.  687. 

An  assignee  in  bankruptcy  has  a  right  to  file  a  bill  in  chancery  against 
all  incumbrancers  of  the  bankrupt's  property,  to  test  their  validity,  priority 
and  amount.  McLean  v.  LaFayette  Bank  et  al.,  3  McLean,  415,  587;  16 
Fed.  Gas.  258,  264  (1844-6). 

The  assignee,  and  not  the  bankrupt,  is  the  proper  party  to  bring  a  writ 
of  error  to  a  judgment  against  the  latter  when  he  has  received  his  dis- 
charge pending  the  action.    Knox  v.  Exchange  Bank,  12  Wall.  379. 

Under  section  5198,  E.  S.,  a  person  who  has  paid  usurious  interest  to  a 
national  bank,  or  his  "  legal  representative,"  may  recover  back  twice  the 
amount  of  the  interest  so  paid.  Held,  that  an  assignee  in  bankruptcy 
could  maintain  an  action  for  that  pui-pose.  Markson  v.  First  National 
Bank,  9  Chi.  Leg.  News,  108;  16  Fed.  Cas.  768. 

Where  property  was  held  by  the  defendant  under  claims  in  different 
rights,  it  was  held  that  the  proper  remedy  for  an  assignee  in  bankruptcy 
seeking  to  recover  the  same  was  a  suit  in  the  form  of  a  creditor's  bill,  and 
that  it  was  no  objection  to  such  proceeding  that  there  were  other  cred- 


Ophcees,  Theie  Duties  and  Compensation.  213 

iters  of  the  defendant.  Stotesbury  et  al.  v.  Oadwallader  et  al.,  31  Leg, 
Int.  22»;  23  Fed.  Gas.  170. 

The  marshal  seized  goods  belonging  to  the  bankrupt  which  were  sub- 
sequently delivered  to  an  alleged  purchaser  upon  his  giving  a  forthcoming 
bond.  The  alleged  sale  was  set  aside  as  fraudulent,  and  this  decision  was 
confirmed  in  the  supreme  court.  The  purchaser  was  insolvent.  The 
court  of  bankruptcy  decided  that  the  assignee  might  proceed  on  one  of 
the  appeal  bonds,  or  upon  the  forthcoming  bond,  without  first  enforcing 
the  same  against  the  estate  of  the  purchaser,  and  that  it  was  not  neces- 
sary to  resort  to  a  plenary  action.  Storrs  et  al.  v.  Engle  et  al.,  3  Hughes, 
414;  23  Fed.  Gas.  165. 

The  assignee  sued  a  debtor  on  the  common  counts.  The  defendant  set 
up  that  before  the  commencement  of  proceedings  in  bankruptcy,  he  had 
brought  his  suit  against  the  bankrupts,  and  that  the  bankrupts  had 
claimed  by  way  of  set-off  the  same  money  sued  for  by  the  assignee,  and 
for  the  same  cause  of  action,  and  that  that  suit  was  still  pending.  A 
demurrer  to  the  plea  was  sustained.  Miller  v.  Del.,  L.  &  W,  K.  Go.,  17 
Fed.  Gas.  314. 

After  the  filing  of  the  petition,  a  note  was  given  to  the  bankrupt  for 
the  payment  of  a  book  account,  and  deposited  in  bank  for  collection  and 
paid  at  maturity.  This  was  held,  in  an  action  brought  by  the  assignee 
for  the  amount  of  the  note,  to  discharge  the  maker.  Galvin  v.  Boyd,  25 
Fitz.  L.  J.  14;  9  Fed.  Gas.  1140. 

The  court  of  bankruptcy  made  an  assessment  upon  all  the  premium 
notes  belonging  to  the  bankrupt,  a  mutual  insurance  company.  This  was 
held  not  to  be  such  an  adjudication  as  to  prevent  the  maker  pleading  a 
defense  to  the  note  when  an  action  was  brought  upon  it  by  the  assignee. 
Lamb  v.  Lamb,  6  Biss.  420;  14  Fed.  Gas.  1016. 

The  interests  of  creditors  will  be  considered,  notwithstanding  the  ex- 
pense and  delay  of  litigation  to  recover  assets  of  the  bankrupt.  In  re 
Rowe,  18  N.  B.  R.  429;  20  Fed.  Gas.  1280. 

The  bankruptcy  of  an  insurance  company  cannot  be  set  up  as  a  de- 
fense to  an  action  on  a  note  given  for  a  premium,  brought  by  the  assignee 
in  bankruptcy.    Garey  v.  Nagle,  2  Biss.  244;  5  Fed.  Gas.  60. 

In  this  case  the  court  decided  under  the  Act  of  1800  that  on  the  death 
of  an  assignee  in  bankruptcy  the  right  of  action  for  a  debt  due  the  bank- 
rupt vested  in  his  executor.    Richards  v.  Maryland  I.  Co.,  8  Oranch,  84. 

The  omission  in  a  bill  in  equity  by  an  assignee  to  allege  that  there  had 
been  an  adjudication  is  not  fatal  when  it  sets  up  the  filing  of  the  petition, 
the  appointment  of  the  assignee  and  the  assignment  to  him.  Lakin  v. 
First  Nat.  Bank,  13  Blatchf.  83;  14  Fed.  Oas.  959. 

An  adjudication  in  bankruptcy  is  an  essential  prerequisite  and  condi- 
tion precedent  to  the  power  of  a  register  to  make  assignment  of  a  bank- 
rupt's estate.  The  adjudication  must,  therefore,  be  alleged  in  a  suit  by 
an  assignee  under  such  assignment  brought  to  recover  the  property  of 
the  alleged  bankrupt.  Wright  v.  Johnson,  8  Blatchf.  150;  4  N.  B.  R.  626; 
30  Fed.  Gas.  678  (1871). 


314  The  Banketjptcy  Law. 

Judge  Hopkins,  of  the  district  court  of  Wisconsin,  in  a  very  elaborate 
opinion,  lield  that  an  assignee  in  bankruptcy  can  sue  and  collect  the 
assets  of  the  bankrupt  in  any  other  court  than  that  in  which  the  bank- 
rupt proceedings  are  pending;  that  this  right  was  conferred  by  the  Act 
of  1867  in  the  authority  given  the  assignee  "  to  collect  the  assets."  Good- 
all  V.  Tuttle,  3  Biss.  219;  10  Fed.  Gas.  579. 

Under  the  Act  of  1867,  an  assignee  could  be  required  to  furnish  se- 
curity for  costs  when  he  was  prosecuting  expensive  litigation,  and  was 
substantially  without  funds  belonging  to  the  estate.  Forman  v.  Camp- 
bell, 9  Ben.  472;  9  Fed.  Oas.  450. 

The  district  court  for  the  district  of  Rhode  Island  decided  that  under 
the  Act  of  1867  an  assignee  In  bankruptcy  could  proceed  against  a  party 
claiming  property  adversely  only  by  an  action  at  law  or  a  suit  in  equity; 
but  did  not  decide  whether  the  adverse  claimant  might  not  proceed 
against  the  assignee  by  a  summary  petition.  Ferguson  et  ux.  v.  Peck- 
ham  et  al.,  6  N.  B.  R.  569';  8  Fed.  Cas.  1152. 

A  bankrupt,  who  was  then  living  in  North  Carolina,  when  proceedings 
were  commenced  In  1868,  owned  certain  railroad  bonds  which  he  had 
deposited  as  collateral  for  debts  that  were  subsequently  paid;  and  he 
omitted  these  from  his  schedule.  Soon  afterward,  he  removed  to  New 
Jersey,  and  died  there  in  1877.  Thereafter,  the  assignee  in  bankruptcy 
brought  suit  to  recover  the  bonds.  The  court  decided  that  the  suit  could 
be  maintained,  and  that  the  delay  did  not  afford  evidence  of  laches. 
FuUings  V.  Fulllngs,  3  N.  J.  L.  J.  270;  9  Fed.  Cas.  991. 

An  assignee  represents  the  creditors  of  the  bankrupt,  as  well  as  the 
bankrupt  himself,  and  it  follows  that  he  can  take  advantage  of  any 
remedy  that  would  be  open  to  an  attaching  creditor.  So  held  in  a  case 
where  the  levy  of  an  execution  on  the  personal  property  of  the  bankrupt 
was  declared  void,  because  it  was  not  made  in  conformity  with  the  laws 
of  the  state.    Beers  et  al.  v.  Place  et  al.,  4  N.  B.  R.  459;  3  Fed.  Cas.  71. 

To  maintain  a  suit  in  equity  against  a  person  in  possession  of  property 
and  claiming  to  own  it  for  an  injunction  restraining  him  from  Inter- 
meddling with  It,  an  assignee  in  bankruptcy  must  show  clearly  the 
existence  of  some  peril  which  a  court  could  not  redress.  Beecher  v. 
BInlnger  et  al.,  7  Blatchf.  170;  3  Fed.  Cas.  49. 

It  Is  not  necessary  for  an  assignee  to  sue  a  bankrupt  for  money  that  he 
appears  to  have  In  his  hands;  the  court  may  make  a  summary  order 
for  him  to  turn  It  over.    In  re  How,  18  N.  B.  R.  565;  12  Fed.  Cas.  621. 

To  establish  his  right  to  bring  a  suit  for  assets,  It  is  only  necessary 
for  the  assignee  to  prove  the  adjudication  and  his  appointment.  Carr 
V.  Gale,  2  Ware,  330;  5  Fed.  Cas.  118  (1847);  affirmed,  Carr  v.  Gale,  3 
W.  &  M.  38;  5  Fed.  Cas.  123. 

An  assignee  may  continue  the  defense  of  a  suit  necessary  to  establish  the 
right  of  the  bankrupt  to  an  interest  In  real  estate,  if  the  creditors  do 
not  object,  and  the  estate  will  be  liable  for  the  expense.  In  re  Babcock, 
1  Woodb.  &  M.  26;  2  Fed.  Cas.  292  (1845). 


Officers,  Their  Duties  and  Compensation.  315 

In  a  case  where  the  bankrupt  had  secured  goods  by  fraud,  and  they 
had  passed  into  the  possession  of  his  assignee  in  bankruptcy,  it  was  held 
that  they  might  be  reclaimed  from  the  latter  as  they  could  have  been 
reclaimed  from  the  bankrupt  himself.  Donaldson  v.  Farwell,  93  XJ.  S. 
631. 

In  the  adjustment  of  a  usurious  loan,  an  assignee  in  bankruptcy  cannot 
surrender  the  benefit  of  the  equitable  principle  which  requires  that  pay- 
ments of  excessive  interest  shall  be  applied  in  liquidation  of  the  principal. 
The  court  considered  without  deciding  whether  he  is  bound  to  set  up 
usury  in  defense  against  a  claim  otherwise  valid  and  meritorious.  In  re 
Hoole,  3  Fed.  Rep.  496. 

A  debtor  of  a  bankrupt  whose  debt  had  accrued  before  the  commence- 
ment of  the  proceedings,  but  who  had  no  notice  or  knowledge  of  his  bank- 
ruptcy, paid  the  debt  to  the  bankrupt  in  the  usual  course  of  business. 
Held,  that  the  assignee  could  maintain  an  action  against  him  for  the 
debt,  notwithstanding  such  payment.  Howard  et  al.  v.  Orompton,  14 
Blatchf.  328;  12  Fed.  Cas.  639. 

If  the  assignee  in  bankruptcy  is  satisfied  that  property  taken  by  him 
does  not  belong  to  the  bankrupt,  it  should  be  returned  without  delay  to 
the  owner;  otherwise  the  claimant  must  seek  redress  by  appropriate 
action  in  the  courts  of  the  state,  and  if  successful  the  costs  of  the  as- 
signee may  or  may  not  be  allowed  him  in  the  discretion  of  the  bankrupt 
court.  This  will  depend  on  whether  the  assignee  was  right  in  taking 
and  holding  the  property  in  dispute.  In  re  Noakes,  Bankr.  Ct.  Kep.  162; 
18  Fed.  Cas.  281. 

Where  the  holder  of  a  bill  of  exchange  proved  his  debt  in  bankruptcy 
against  the  acceptor  and  also  brought  a  suit  at  law  against  the  drawers 
and  attached  their  property,  it  was  held  that  he  was  not  obliged  to  pursue 
the  suit  at  law  at  his  own  expense,  and  if  he  did  not,  the  assignee  should 
conduct  It  for  the  benefit  of  the  bankrupt's  estate  and  at  its  expense.  In 
re  Babcock,  3  Story,  393;  2  Fed.  Cas.  289  (1844). 

An  assignee  in  bankruptcy  is  not  obliged  to  sell  mortgaged  property 
of  the  bankrupt  unless  its  value  exceeds  the  mortgage  lien.  McHenry  v. 
La  Societe  Francaise,  95  U.  S.  58. 

An  assignee  In  bankruptcy  is  not  bound  to  take  possession  of  property 
which  would  be  of  no  benefit  to  the  estate.  He  must  exercise  his  elec- 
tion within  a  reasonable  time.  If  he  elect  not  to  take  possession,  the 
property  remains  in  the  bankrupt  and  his  possession  is  good  against  all 
the  world  but  the  assignee.  Smith  v.  Gordon  et  al.,  2  N.  X.  Leg.  Obs.  325; 
22  Fed.  Oas.  554  (1843). 

When  the  personal  property  of  the  bankrupt  is  mortgaged  beyond  its 
value,  the  assignee  in  bankruptcy  has  no  other  duty  than  to  set  apart 
exempt  property  to  the  bankrupt.  In  re  Lambert,  2  N.  B.  R.  426;  14  Fed. 
Cas.  1045. 

An  assignee  in  bankruptcy  represents  the  creditors  as  well  as  the 
bankrupt,  and  in  the  former  capacity  no  defense  could  be  set  up  against 
him  which  could  not  be  set  up  if  the  suit  was  solely  in  the  interest  of 


216  •  The  Bankeuptct  Law. 

creditors,  so  far  as  concerns  the  validity  of  stock  upon  which  he  was 
seeliing  to  collect  unpaid  subscriptions.  Upton  v.  Jaclison,  1  Flipp.  413; 
28  Fed.  Cas.  8i4. 

Mortgagees  of  the  bankrupt  asked  that  the  assignee  be  ordered  to 
satisfy  their  claim  out  of  the  funds  in  his  hands  after  a  sale  of  the  mort- 
gaged goods.  The  assignee  replied  that  the  mortgage  was  void  as  to 
creditors,  and  this  was  established  in  proof.  It  was  then  claimed  that 
the  assignee  could  not  set  up  this  defense,  as  he  succeeded  only  to  the 
rights  which  the  bankrupt  had,  and  that  as  between  the  parties  the  mort- 
gage was  valid.  The  court  held  that  the  assignee  represented  the  whole 
body  of  creditors,  and  that  it  was  his  right  and  duty  to  contest  the 
validity  of  the  mortgage.    In  re  Metzger,  2  N.  B.  R.  355;  17  Fed.  Cas.  231. 

The  stockholders  of  a  bankrupt  corporation  had  paid  20  per  cent,  on 
their  subscriptions,  but  were  liable  for  the  remaining  80  per  cent,  in  the 
event  of  the  cash  fund  becoming  impaired  by  losses.  The  entire  funds 
of  the  company  having  been  exhausted,  it  was  held  that  it  was  not  com- 
petent for  the  assignee  on  his  own  motion  to  make  an  assessment  on  un- 
paid balances,  and  that  before  he  could  recover  from  the  stockholders  of 
the  corporation,  there  must  have  been  either  corporate  action  to  fix,  or  a 
judicial  assignment  of,  the  defendant's  liability.  Payson  v.  Brooke,  19 
Fed.  Oas.  17. 

Among  the  property  that  came  into  the  hands  of  the  assignee  were  some 
unfinished  locomotives.  The  court  authorized  the  assignee  to  expend 
money  belonging  to  the  bankrupt  estate  in  finishing  them,  saying:  "  There 
is  no  express  provision  in  the  statute  touching  this  jwint;  but  upon  care- 
ful reflection  I  am  satisfied  that  where  a  great  advantage  will  result 
to  the  estate,  and  within  a  reasonable  time,  the  assignee  may  be  per- 
mitted to  expend  money  in  this  way."  Foster  et  al.  v.  Ames  et  al.,  1 
Low.  313;  9  Fed.  Cas.  527. 

The  stockholders  of  a  corporation  had  pledged  its  bonds,  secured  by 
mortgage,  to  secure  a  personal  indebtedness.  Thereafter  the  pledgee 
became  bankrupt.  The  corporation  also  became  insolvent,  and  its  stock- 
holders liable  for  its  debts.  The  creditor  agreed  to  take  the  bonds  and 
secured  the  assignee  in  bankruptcy  from  liens  as  a  stockholder.  Under 
these  circumstances,  it  was  held  .Iiat  he  could  enforce  the  individual 
liability  of  other  stockholders.  Further  held  that  as  the  assignee  had 
never  consented  to  become  a  stockholder,  there  was  no  liability  on  his 
part.    American  File  Co.  v.  Bari.tt,  110  U.  S.  288. 

The  only  relation  the  assignee  sustains  to  the  bankrupt,  or  oflaee  he 
performs  for  him,  is  to  set  aside  his  exempt  property;  in  all  else  he  is 
agent  of  the  law  for  the  benefit  of  the  creditors;  in  other  words,  his  duty 
is  to  collect  the  bankrupt's  estate  for  distribution  among  the  creditors 
according  to  their  respective  rights  and  priorities.  Aiken  v.  Edrington, 
15  N.  B.  R.  271;  1  Fed.  Cas.  238. 

An  assignee  in  bankruptcy  of  a  corporation  does  not  represent  its  cred- 
itors for  the  purpose  of  enforcing  a  claim  against  an  officer  under  a 


Officehs,  Theie  Duties  and  Compensation.  217 

statute  making  him  personally  liable  for  the  debts  of  the  corporation. 
Bristol  V.  Sanford,  12  Blatchf.  341;  4  Fed.  Cas.  102. 

An  assignee  In  bankruptcy  may  be  required  by  the  district  court  to  take 
whatever  steps  are  necessary  for  the  protection  of  the  rights  of  creditors. 
Glenny  v.  Langdon,  98  U.  S.  20;  Trimble  v.  Woodhead,  102  Id.  647. 

An  assignee  In  bankruptcy  has  no  standing  In  the  controversies  betveeen 
secured  creditors  unless  they  shall  affect  the  estate  to  which  he  is  en- 
titled.   Dudley  v.  Easton,  104  TJ.  S.  99. 

It  was  held,  under  the  Act  of  1800,  that  an  assignee  could  not  Impeach 
the  authority  of  the  commissioners  under  whom  he  received  the  prop- 
erty of  the  bankrupt.  Gullck's  Executors  v.  Mclver,  3  Cranch  O.  O.  650; 
11  Fed.  Cas.  110  (1804). 

An  assignee  can  retain  his  fees  and  commissions  out  of  funds  in  his 
hands,  but  not  money  to  cover  further  expected  allowances.  He  is  liable 
to  the  estate  for  interest  lost  by  his  failure  to  deposit  funds  in  bank. 
In  re  Burt,  27  Fed.  Kep.  54& 

Under  the  Act  of  1874,  the  assignee  must  sell  at  auction  notes  belong- 
ing to  the  bankrupt.  If  he  allows  them  to  be  barred  by  limitation,  he  is 
liable  for  the  loss  r-  that  being  the  amount  which  could  have  been  col- 
lected on  them.    In  re  Newcomb,  32  Fed.  Rep.  826. 

The  assignee  having,  without  the  approval  of  the  court,  sold  real  es- 
tate, taking  a  bond  secured  by  mortgage,  the  property  becoming  in- 
adequate to  meet  the  price,  it  is  proper  to  order  the  mortgage  to  be 
transferred  to  the  assignee  in  his  own  right,  he  assuming  the  amount  due 
on  the  purchase  price.    Ibid. 

An  assignee  holding  a  lien,  and  being  permitted  by  the  court  to  bid 
on  property  of  the  estate  at  sheriff's  sale,  there  being  no  fraud,  will 
not  be  chargeable  with  the  profit  arising  from  the  transaction.  In  re 
Carrier,  39  Fed.  Rep.  193. 

The  court  sustained  the  right  of  petitioners  who  had  been  injuriously 
affected,  although  they  were  not  parties  to  the  bankruptcy  proceedings, 
to  set  aside  the  acts  of  an  assignee  in  bankruptcy  upon  the  ground  of 
fraud  and  illegality.    In  re  King,  3  Fed.  Rep.  839. 

In  a  case  where  new  assets  were  discovered  after  the  death  of  the 
assignee  in  bankruptcy,  the  court  appointed  a  new  assignee  to  collect 
them,  notwithstanding  the  right  of  the  estate  to  such  assets  was  doubt- 
ful and  subject  to  litigation.    In  re  Mahoney  et  al.,  5  Fed.  Rep.  518. 

The  supreme  court  here  considered  the  difference  between  the  func- 
tions of  an  assignee  in  bankruptcy  and  those  of  a  receiver  appointed  by 
a  court  of  equity.    Booth  v.  Clark,  17  How.  322. 

An  assignee  in  bankruptcy  is  an  officer  of  the  court,  and  is  limited 
in  that  capacity  to  the  powers  and  authority  conferred  upon  him  by  the 
Bankruptcy  Act  and  the  orders  of  the  court.  Anything  he  may  do  out- 
side of,  or  in  conflict  with,  or  In  violation  of  such  powers  and  authority 
is  of  course  null  and  void.  In  re  Ryan,  6  N.  B.  B.  235;  21  Fed.  Cas.  104 
(1872). 


318  The  Bankeuptcy  Law. 

An  assignee  in  banlcruptey  is  not  estopped  by  a  judgment,  notwith- 
standing it  would  worli  an  estoppel  against  him  in  his  personal  capacity. 
Abendroth  v.  Durant,  1  Fed.  Rep.  849. 

A  trustee  under  an  assignment  for  the  benefit  of  creditors  was  sub- 
sequently appointed  assignee  in  banliruptcy.  Held,  that  his  acts  in  the 
former  capacity  must  be  adopted  so  far  as  they  were  In  accordance  with 
the  deed  of  assignment.    In  re  Walker,  18  N.  B.  R.  56;  2&  Fed.  Cas.  3. 

It  is  contempt  of  a  court  of  bankruptcy  for  an  assignee  to  take  any 
measure  in  a  state  court  without  leave.  In  re  Smith,  2  Hughes,  284;  22 
Fed.  Cas.  391. 

The  court  said  that  no  duty  was  imposed  upon  an  assignee  by  law  to 
institute  a  search,  or  even  an  inquiry,  with  respect  to  the  interest  of  the 
bankrupts  under  a  will,  which  was  not  mentioned  in  their  schedules,  nor 
indicated  to  the  assignee  by  any  of  the  creditors.  In  re  Mott  et  al.,  17 
Fed.  Cas.  902. 

Under  the  Act  of  1867  an  order  of  the  district  court  for  the  payment 
of  a  claim  on  a  hearing  of  which  the  assignee  had  no  notice,  was  re- 
versed to  give  him  an  opportunity  to  resist  the  claim.  In  re  Mltteldorfer 
et  al.,  Chase,  276;  17  Fed.  Cas.  534. 

A  levy  having  been  made  on  goods  of  the  bankrupt  after  the  filing  of 
his  petition,  it  was  held  that  the  assignee  should  make  a  sale  of  the 
goods,  and  deposit  the  proceeds  subject  to  the  further  determination  of 
the  court.    Pennington  v.  Sale  et  al.,  1  N.  B.  R.  572;  19  Fed.  Cas.  169. 

Judge  Hughes,  of  the  district  court  of  Virginia,  decided  that  an  as- 
signee in  bankruptcy  cannot  obtain  the  direction  of  the  court  as  to  the 
mere  administration  of  his  trust  in  matters  that  are  within  is  own  power 
and  discretion,  unless  some  opposing  interests  raised  an  Issue.  Estate  of 
Franklin  S.  F.  Soc,  31  Leg.  Int.  173;  9  Fed.  Cas.  715. 

The  Act  of  1867  did  not  authorize  a  court  of  bankruptcy  to  empower  the 
assignee  to  compromise  all  doubtful  debts  with  the  consent  of  a  committee 
of  creditors.    In  re  Dibblee  et  al.,  3  Ben.  354;  7  Fed.  Cas.  657. 

Under  the  Act  of  1867  the  execution  of  a  deed  of  assignment,  and 
the  transfer  of  the  property,  made  the  assignee  a  trustee  in  possession 
for  the  equal  benefit  of  all  creditors.  In  re  Kimball,  1  N.  Y.  L.  J.  230; 
14  Fed.  Cas.  480. 

Where  the  estate  of  the  bankrupt  has  been  settled  and  no  debts  proved, 
the  surplus  funds  in  the  hands  of  the  assignee  will  be  turned  over  to  the 
bankrupt  on  his  verified  petition,  showing  a  proper  case  therefor.  In 
re  Hoyt,  3  N.  B.  R.  55;  12  Fed.  Cas.  760. 

An  assignee  cannot  be  compelled  to  account  to  any  court  other  than 
that  which  appointed  him.    In  re  Bowie,  1  N.  B.  R.  628;  3  Fed.  Oas.  1067. 

Funds  in  the  hands  of  an  assignee  in  bankruptcy  are  not  taxable  by 
the  state.    In  re  Boothroyd,  14  N.  B.  R.  232;  3  Fed.  Cas.  881. 

Judge  Lowell,  of  the  district  court  of  Massachusetts,  commenting  upon, 
and  dissenting  from  the  opinion  of  the  register  in  the  Boothroyd  case 
(14  N.  B.  R.  232;  3  Fed.  Cas.  881),  decided  that  funds  in  the  hands  of 


Officees,  Theih  Duties  and  Compensation.  219 

an  assignee  in  bankruptcy  may  be  taxed  under  the  laws  of  a  state.  In 
re  Mitchell,  10  N,  B.  R.  535;  17  Fed.  Cas.  493. 

Funds  in  the  hands  of  an  assignee  in  bankruptcy  are  not  subject  to 
garnishment.    In  re  Cunningham,  19  N.  B.  E,  276;  6  Fed.  Cas.  958. 

Money  belonging  to  the  estate  of  a  bankrupt  in  the  hands  of  an  as- 
signee in  bankruptcy  Is  not  subject  to  attachment  In  re  Ohisholm  et  al., 
4  Fed.  Rep.  52a 

It  was  held  that  the  assignees  of  a  bankrupt,  under  the  laws  of  Eng- 
land, could  not  maintain  an  action  against  a  debtor  of  the  bankrupt  in 
this  country  in  their  own  name.  Perry  et  al.  v.  Barry,  1  Cranch  C.  O. 
204;  19  Fed.  Gas.  266. 

It  was  held  that  trustees,  under  section  43  of  the  Act  of  1867,  could 
settle  the  estate  under  the  direction  of  the  committee,  or  the  court  might 
limit  them  to  the  powers  and  duties  exercised  by  assignees.  In  re  Darby, 
4  N.  B.  R.  309;  6  Fed.  Cas.  1177. 

Previous  to  the  proceedings  the  bankrupt  had  become  the  owner  of 
a  judgment.  Later,  he  died  and  an  executrix  was  appointed.  There- 
after the  judgment  was  revived  by  a  writ  of  scire  facias,  the  assignee, 
and  upon  his  death  his  successor,  being  made  a  party.  The  judgment 
debtor  moved  to  set  the  proceedings  aside.  The  supreme  court  held  that 
the  writ  of  scire  facias  was  properly  sued  out  by  the  bankrupt's  executrix, 
and  that  there  was  no  reason  why  the  bankrupt  should  be  relieved  from 
the  judgment.    Brown  v.  Wygant  et  al.,  163  U.  S.  618. 

It  was  held,  u